international human rights law while they still adhere to Islamic law. ...... Malaysia, Islamic Republic of Maldives, Mali, Islamic Republic of Mauritania, Morocco, ...
ID--
TIE UNIVERSITY OF NOTTINGHAM SCHOOL OF LAW
MODERN
MUSLIM STATES BETWEEN ISLAMIC LAW AND HUMAN RIGHTS LAW INTERNATIONAL
By
MASHOOD ADEBAYO BADEKIN LL. B (English Laws IslanicLaw CWibi
,
BL (Barrister& Solicitorof theSupremeCant jNirik), LL. M (PublicInternationalLaze).
0-TTINGyg4
/ýý
?SITY L\6PP
Thesis submitted to the University of Nottingham for the Degree of Doctor of Philosophy (PhD)
April 2001
Abstract
This thesis examines the important question of whether or not Islamic law and international human rights are compatible and whether Muslim States can comply with international human rights law while they still adhere to Islamic law. The traditional arguments on the subject are examined and responded to from both international human formulates legal Islamic The thesis perspectives. a synthesis between two extremes rights and and argues that although there are some differences of scope and application, that does not international dissonance between law Islamic human law. general state of and a rights create It is argued that the differences would be easier to address if the concept of human rights were positively established from within the themes of Islamic law rather than imposing it as a law. Islamic To avoid a simplistic generalisation of the arguments, each to alien concept Article of the international bill of rights (ICCPR and ICESCR) and some relevant articles of the Convention on the Elimination
of all Forms of Discrimination
against Women are
analysed in the light of Islamic law. The thesis theoretically engages international human rights law in dialogue with Islamic law and then evaluates the human rights policy of modern Muslim States within the scope of that dialogue. The State Practice of six Muslim States is examined as case studies to establish the arguments of the thesis. The thesis concludes, inter international law Islamic it is harmonise differences between that to the and alia, possible human rights law through the adoption of the margin of appreciation doctrine by international human rights treaty bodies and the utilisation of the Islamic law doctrines of magäsid al-shari `ah (overall objective of Shari `ah) and maslahah (welfare) by Muslim States in their interpretation and application of Islamic law respectively. It is asserted that Islamic law can serve as an important vehicle for the enforcement of international human rights law in the Muslim world and recommendations are advanced to that effect in the conclusion.
I
Affirmation This thesis, submitted for the Degree of Doctor of Philosophy, is my own work and has not been submitted previously for any other Degree elsewhere.
Dedicated to therrrnmyof HAOLAT
`LAITAN.
lll
Contents
Abstract Affirmation
ii
Dedication Table of Contents
iv
Cases Cited
ix
Glossary
xi
Acknowledgements
xv
CHAPTER
I
1
Introduction
1
INTRODUCTORYREMARKS
1
DEFINING THE PROBLEM AND METHOD OF ANALYSIS
2
STRUCTURE OF THESIS
5
Part One: Conceptual Issues
CHAPTER 2 The Nature and Evolution
8 of International
Human
Rights
Law
8
WHAT ARE HUMAN RIGHTS?
8
THE EMERGENCE OF THE INTERNATIONAL HUMAN RIGHTS REGIME
9
CATEGORISATION OF HUMAN RIGHTS
13
UNIVERSALISM IN INTERNATIONAL HUMAN RIGHTS LAW
15
THE PARADOX OF UNIVERSALISM AND CULTURAL RELATIVISM
18
RELEVANCE OF ISLAMIC LAW TO UNIVERSALISM IN INTERNATIONAL HUMAN RIGHTS LAW
20
CHAPTER 3 The Nature and Evolution
24 of Islamic
Law
THE NATURE OF ISLAMICLAW SOURCES OF ISLAMIC LAW METHODS OF ISLAMIC LAW
24 25
SharT ah -
Fiqh
26 28
SPIRITUAL AND TEMPORAL ASPECTS OF ISLAMIC LAW
31
THE SCOPE AND PURPOSE OF ISLAMIC LAW
32
PROMOTION OF WELFARE AND PREVENTION OF HARM (Maslahah)
33
IV
CHAPTER 4
35
The Idea of Human Rights within Islamic Law
35 35
BREAKING TRADITIONAL BARRIERS
ISLAMIC RESPONSES IN THE INTERNATIONAL HUMAN RIGHTS DISCOURSE38 Is THERE A THEORY OF RIGHTS IN ISLAMIC LAW?
41
HUMAN RIGHTS WITHIN ISLAMIC LEGAL THOUGHT
47
HUMAN DIGNITY AS BASIS FOR HUMAN RIGHTS IN ISLAMIC LAW
52
LANGUAGE OF RIGHTS IN ISLAMIC LAW
55
THE STATE AND THE ENFORCEMENT OF HUMAN RIGHTS IN ISLAMIC LAW 57 BALANCE BETWEEN PUBLIC ORDER AND INDIVIDUAL RIGHTS
65
CODIFICATION OF HUMAN RIGHTS UNDER ISLAMIC LAW
68
SCOPE OF HUMAN RIGHTS UNDER ISLAMIC LAW
70
ISLAMICCRIMINAL PUNISHMENTSAND INTERNATIONAL 72
HUMAN RIGHTS LAW
81
CHAPTER 5 Conceptual Differences in Islamic Law and Law
81
THE THEOCENTRIC VERSUS ANTHROPOCENTRIC DIFFERENCES
81
INTERNATIONAL HUMAN RIGHTS LAW AND WESTERN LIBERALISM
88
INTERNATIONAL HUMAN RIGHTS LAW AND "ISLAMIC FUNDAMENTALISM"
93
CONCLUDING REMARKS
97
International
Human
Rights
Part Two: Comparative Legal Analysis
CHAPTER 6
99
The International Covenant on Civil and Political Rights (ICCPR) in the Light of Islamic Law
99
INTRODUCTORY REMARKS
99
THE RIGHTS GUARANTEED UNDER THE ICCPR
100
THE OBJECT AND PURPOSE OF THE COVENANT
101
OBLIGATIONS OF STATES PARTIES UNDER THE ICCPR THE RIGHT OF SELF-DETERMINATION
-
Article
-
Article
102
1
EQUALITY OF RIGHTS BETWEEN MEN AND WOMEN - Article THE RIGHT TO LIFE - Article
2
105 3
109
6
116
PROHIBITION OF TORTURE OR CRUEL, INHUMAN OR DEGRADING
TREATMENTOR PUNISHMENT -Article
7
125
FREEDOM FROM SLAVERY, SERVITUDE & FORCED LABOUR Article -
8
128
THE RIGHT TO LIBERTY AND SECURITY OF PERSON Article -
9
129
THE RIGHT TO A HUMANE INCARCERATION SYSTEM Article -
10
132
V
FREEDOM FROM IMPRISONMENTFOR CONTRACTUALOBLIGATION
Article 11 -
134
THE RIGHT TO FREEDOM OF MOVEMENT AND CHOICE OF RESIDENCE
-Article FREEDOM OF ALIENS FROM ARBITRARY EXPULSION - Article
12
135
13
137
THE RIGHT TO FAIR HEARING AND DUE PROCESS OF LAW - Article FREEDOM FROM RETROACTIVE CRIMINAL LAW - Article
14
138 152
15
THE RIGHT TO RECOGNITION AS A PERSON BEFORE THE LAW
-Article THE RIGHT TO PRIVACY - Article
16
153
17
154
THE RIGHT TO FREEDOMOF THOUGHT, CONSCIENCEAND RELIGION
158
Article 18 THE RIGHT TO FREEDOMOF OPINION AND EXPRESSION- Article 19
164
THE PROHIBITION OF PROPAGANDA FOR WAR AND INCITEMENT TO
169
HATRED-Article 20 THE RIGHT TO PEACEFUL ASSEMBLY - Article
170
21
THE RIGHT TO FREEDOM OF ASSOCIATION - Article
170
22
172
23
THE RIGHT TO MARRY AND FOUND A FAMILY - Article
177
Polygyny in Islamic Law and Equality of Rights in Marriage Female Endogamy in Islamic Law and Equality of Rights as to Marriage Female's Share in Islamic Inheritance and Equality of Rights in Marriage
183 185
Dissolution of Marriage in Islamic Law and Equality Rights of Women
188
Concluding Observation
192
Protection of Children
193
THE RIGHTS OF THE CHILD - Article 24
193
POLITICAL RIGHTS - Article
196
25
THE RIGHT TO EQUALITY BEFORE THE LAW - Article
202
26
THE RIGHTS OF ETHNIC, RELIGIOUS OR LINGUISTIC MINORITIES
Article 27 -
204
CONCLUDING REMARKS
206
CHAPTER 7 The International Cultural
Rights
208 Covenant on Economic, Social and (ICESCR)
in the Light
of Islamic
Law
208
INTRODUCTORY REMARKS THE RIGHTS "RECOGNIZED"
208 UNDER THE ICESCR
210
THE OBJECT AND PURPOSE OF THE COVENANT OBLIGATIONS OF STATES PARTIES UNDER THE ICESCR THE RIGHT TO WORK -Article
6
211 Article -
2
211 215
vi
THE RIGHT TO JUST AND FAVOURABLE CONDITIONS OF WORK 7
-Article TRADE UNION RIGHTS
8
-Article
225
THE RIGHT TO SOCIAL SECURITY AND SOCIAL INSURANCE Article FAMILY RIGHTS
221
9
10
-Article
227 232
THE RIGHT TO ADEQUATE STANDARD OF LIVING Article -
11
239
THE RIGHT TO HIGHEST ATTAINABLE STANDARD OF PHYSICAL Article 12 AND MENTAL HEALTH -
245
THE RIGHT To EDUCATION Articles -
249
13 and 14
THE RIGHT TO CULTURAL LIFE AND BENEFITS OF SCIENTIFIC PROGRESS
-Article
15
CONCLUDINGREMARKS
254 258
Part Three: Case Studies
CHAPTER 8 Case Studies of International in Modern Muslim States
260 Human Rights Policy and Practice 260
INTRODUCTORY REMARKS
260
KINGDOM OF SAUDI ARABIA
261
Constitutional Rights
263
Equality and Non-discrimination
267
Women's Rights
268
Islamic Criminal Justice
271
General Representations on Human Rights
275
THE ISLAMIC REPUBLIC OF IRAN
277
Constitutional Rights
281
Equality and Non-discrimination
281
Women's Rights
283
Islamic Criminal Justice
287
General Representations on Human Rights
288
REPUBLIC OF SUDAN
289
Constitutional Rights
291
Equality and Non-discrimination
292
Women's Rights
293
Islamic Criminal Justice
297
General Representations on Human Rights
301
ISLAMIC REPUBLICOF PAKISTAN
302
Constitutional Rights
304
Equality and Non-discrimination
309
Women's Rights
309
VII
Islamic Criminal Justice
314
General Representations on Human Rights
316
REPUBLIC OF TUNISIA
317
Constitutional Rights
318
Equality and Non-discrimination
319
Women's Rights
319
Islamic Criminal Justice
323
General Representations on Human Rights
323
REPUBLIC OF TURKEY
325
Constitutional Rights
327
Equality and Non-discrimination
328
Women's Rights
329
Islamic Criminal Justice
333
General Representations on Human Rights
333
CONCLUDING REMARKS
334
CHAPTER 9
336
Conclusion
336
SUMMARY OF FINDINGS AND RECOMMENDATIONS
336
Domestic Means for Enhancing Human Rights in the Muslim World 341 Human Rights Education
341
The Judiciary
342
National Human Rights Commissions
342
Regionalism as a Vehicle of Universalism
343
The Organisation of Islamic Conference (OIC) as a Vehicle of Universalism in the Muslim World
345
A Binding Human Rights Covenant and an International Islamic Court of "Mazälim"
349
The Margin of Appreciation Doctrine as a Means of Universalism Bibliography
351 356
vii'
CasesCited African Commission on Human and Peoples' Rights Amnesty International. v. Sudan
... ... ... ... ... Association of Members of the Episcopal Conference of East Africa v. Sudan... . Comite Loosli Bachelard. v. Sudan ... ... ... ... ... Lawyers Committee for Human Rights. v. Sudan ...
...
...
...
298 298 298 298
European Court of Human Rights B. v. France
... ... Cossey. v. United Kingdom
Ireland. v. United Kingdom Jabari. v. Turkey
... ...
...
...
Otto-Preminger-Institut.
... v. Australia
Rees. v. United Kingdoom
Tyrer. v. United Kingdom
... ...
... ... ...
...
...
... ...
...
... ... ... ...
...
...
...
...
... ... ... ...
...
...
... ...
... ...
...
... ...
...
354 354
125 274 158,168 354
125,127
Human Rights Committee Alberta Union. v. Canada
... Bahamonde. v. Equatorial Guinea
Broeks. v. Netherlands
...
Canepa. v. Canada
... Charles Stewart. v. Canada
...
...
... ... ...
Coeriel & Aurik. v. Netherlands ... Delgado Päez. v. Colombia ... Dietmar Pauger. v. Austria ... Hertzberg and Others. v. Finland
... ... ... ... ... ... ...
Ilmari Lansman et al. v. Finland Katombe Tshishimbi
v. Zaire
...
...
Rickly Burrell. v. Jamaica
... ... ... ... ... ... ...
...
Lubicon Lake Band. v. Canada ... Miguel Angel Estrella v. Uruguay
R.T.. v. France
...
...
... ... ...
...
... ... ... Shirin Aumeeruddy-Cziffra and Others v. Mauritius . Suarez de Guerrero. v. Colombia ... ... Toonen. v. Australia ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ...
... ... ... ...
101 140 203 135 135 155 130 181 351 351 130 105 155
105,343 117 155,234 117 155,157
1R
Tshisekedi. v. Zaire
... ... Zwan-de Vries. v. The Netherlands
International
... ...
... ...
... ...
... ...
155
...
203
...
Court of Justice
South West Africa case ...
...
...
...
...
...
...
109,109,203
Nigeria Adesubokan. v. Yinusa ... ... ... Tela Rijiyan Dorawa. v. Hassan Daudu ...
... ...
... ...
188
... ...
...
92,143
Pakistan
Akbar Ali. v. Secretary,Ministry of Defence,Rawalpindi & Another Allah Bux and Ano. v. The State ...
...
Ansar Burney v. Federation of Pakistan . ...
Bahadur Shah v. TheState .
...
...
Benazir Bhuto v. The Federation of Pakistan . Darshan Masih v. The State . ... Fazal Jan v. Roshan Din . ... ... Federation of Pakistan v. Hazoor Bakhsh .
...
...
... ...
... ...
...
315
...
115,143,201,202,219,308,313,330
...
...
...
...
310
...
307
...
307
... ... ...
... ...
Hazoor Bakhsh v. Federation of Pakistan . ... ... Mujibur Rahman v. The Federal Govt. of Pakistan . ... Musarrat Uzma and Ano. v. Govt. of the Punjab and Ano.
Safia Bibi v. The State . ... TheState.v. Ghulan Ali.
...
307
... ...
... ...
... ... ... ... ...
... ...
309
...
315
...
315
...
305
...
308
...
310
... ...
79,314
Zaheer-ud-deen and Others. v. The State and Others 304,305,306,307,308,309 ... United States of America Bowers. v. Hardwick
...
...
...
...
...
...
158
X
Glossary Addlah: Justice. Adät: Custom.
Add: Solitary Hadlth transmittedthrough a single chain of individuals. Amr bi al-ma `rüf wa nahy an al-munkar: The Islamic public order principle of commanding virtues and prohibiting vices. Asir: Prisoner. Bay `ah: Pledge of allegiance. Bayt al-mäl: State treasury. Goodness, Righteousness.
al-Birr: Darürah:
Necessity. Indispensable benefits or rights - comprising of. Life, Family, Property, Intellect and Religion.
Darüriyyät:
Non-Muslim citizen of the Islamic State.
Dhimmi: Diyah:
Blood-Money - Compensation for murder of injuries.
Faskh: Judicial annulment of marriage. Fatwd: Legal or religious opinion by a qualified Islamic jurisconsult. Fiqh: Islamic Jurisprudence. Habs: Imprisonment. Habs Ihtiyäti: Preventive detention pending investigation of a crime. Hidänah:
Child custody and care.
Hadith: Saying; Traditions of the Prophet Muhammad. Häjiyyät: Necessary benefits or rights; - Comes next in line to Darüriyyät. Hakim: Law Giver. Haqq: Right. Haqq al- `afw `an al- `ugabah: Right of clemency from punishment; Amnesty. Haqq Allah al-khälis: Special right of God al-Hugüq al-Fitriyyah:
Natural right; Fundamental right.
Hibah: Gift. Hiräbah: Highway robbery; Brigandage. Hisbah: Public order. Hudüd: " Limits; The fixed punishments for certain crimes under Islamic law. Hukm: Legal ruling; Injunction; Decision.
Hugüq: Rights. Hugüq Adamiyyin: Rights of humans; Private rights; Human rights.
Huqüq al-Ibäd: Rights of servants(of God) i.e. Rights of humans;Private rights; Human rights.
xi
Hugüq al-Insän: Rights of human beings; Human Rights. Hugüq Allah: Rights of God; Public Rights. Hurriyyah:
Freedom; Liberty.
Ibäd: Servants (of God). Ibäddt: Acts of worship. Ihsän: Benevolence; Goodness Ijmä':
Islamic legal consensus.
Ijtihäd: Juridical reasoning of a qualified Islamic legist. Insäniyyah:
Humanity; Humaneness; Civility.
Isnäd: Chain of narrators of Hadith. Istihsän: Juristic preference. Istishdb: Legal presumption of continuity of a state until contrary is proved. Istisläh:
Welfare; Benefit.
Jähiliyyah:
Guardianship.
Kafdlah: Karämah: Khiläfah:
Ignorance.
Honour; Human Dignity. Representation; Rule by representation.
Khiyär al-Bullig: Option of puberty. Khiyär al-Taläq: Option of divorce.
Khul': Divestiture; Discharge of marriage initiated by the wife. Madhhab: School of thought. Ma'rüf
Virtue.
Mahküm alayh: Subject of the Law. Mahküm fih: Object of the Law. Mahr: Dowry; Marriage endowment (in cash or service) paid by the husband to the wife. Mahram: Unmarriageable male relation of a Muslim woman. Magäsid al-Shari `ah: Overall Objective of the Shari 'ah; Object and purpose of the Shari `ah. Mas'üliyyah: Responsibility. Maslahah: Welfare; Benefit. Maslahah Mursalah: Public Interest.
Maslahah Wahmiyyah: Dubious welfare; non-genuinewelfare. Mazälim: Complaints tribunal; Court of grievances. Mu `ämalät: Social intercourse: Inter-human relations. Mubära'ah: Dissolution of marriage by mutual/bilateral agreement of the couple. Mufti: Islamic jurisconsult. Muhtasib: Public order officer. Muhtasibün: Public order officers.
xn
Mujtahidün:
Islamic legists competent enough to formulate independent legal or theological opinion based on the sources and methods of Islamic law (Singular: Mujtahid).
Muräfa `ah: Defence; appeal; legal proceedings. Musäwäh: Equality. Musta'min: Safe alien: Non-national of the Islamic State who enjoys safe conduct in it. Mutaw `ah: Religious Volunteers Naqd al-Hakim: Governmental criticism: governmental censorship. Nasihah: Admonition; Advice. Naskh: Abrogation. Qadä': Judgement. Qadhf. Slanderous accusation (of adultery or fornication). Qädi: Judge.
Qädi al-Qudät: Chief Justice. Qisas: Retaliation. Qawämün: Guardians; Protectors; Defenders. Qiyäs: Legal analogy. Rajm: Punishment by stoning. Riddah: Apostasy. Sabb Allah aw Sabb al-Rasül: Reviling God or reviling The Prophet; Blasphemy.
Sadagät: Charity; Voluntary Alms. Sahib al-Mazälim: Complaints officer; Ombudsman. Sariqah: Theft as defined under Islamic law. Sharb al-Khamr: Wine-drinking. Shari `ah: The Right Path; Qur'an and Sunnah. Source of Islamic Law. Shürd: Consultation. Siyäsah Shar `iyyah: Legitimate governmental policy based on the Shari `ah. Sunnah: Practice; The Practices of Prophet Muhammad. Ta `äwun: Co-operation. al-Täbi'ün: The early Muslims who met the era of the Prophet's Companions but not that of the Prophet himself.
Tadry: Islamic legal principle of gradualism. Tafwid al-Taläq: Delegatedrepudiation of marriage. Ta 7iq al-Taläq: Suspended repudiation of divorce. Ta `zir: Discretionary punishment under Islamic law. Tahsiniydt: Improvement benefits or rights; Comes next in line to Häjiyydt. Takhayyur: Eclectic choice (Movement between the schools of Islamic jurisprudence). Taglid: Conformism; Blind following of a juristic view.
xiii
Tagnin: Codification. TashrI `: Legislation. `Ulamä': Traditional Islamic scholars. Ummah: Community (Nation).
`Urf Custom;Usage;Practice. Zakät: Annual obligatory alms (tax) payable by Muslims in favour of the indigent. Zinä: Adultery/Fornication.
xlv
Acknowledgements Working on this thesis has undoubtedly been very challenging. I have tasted both the stress and sweetness of scholarship during the pursuance of this PhD and have further identified my strengths and weaknesses in different spheres of life. Overall, it has been a very rewarding endeavour and a great milestone in my life. I thank God for helping me all the way through and owe so many people acknowledgements for this achievement. I first thank the University of Nottingham and the UK Committee of Vice-Chancellors for the scholarship believe funded I that the grants have been justified. that my studies. grants My greatest acknowledgement goes to my Supervisor, Professor D. J. Harris, for his guidance and encouragement at every stage of this work. His supervision and academic experience has greatly contributed to every credit of this thesis. I greatly appreciate his for being throughout my academic pursuit at the University my well and concern assistance of Nottingham. I have learnt a lot from him. I also acknowledge the assistance and cooperation of my personal tutor, Professor Nigel White, on both academic and personal matters. The same goes to my initial personal tutor, Professor Stephen Livingstone. Thanks also to Dino Kritsiotis for his assistance and encouragement. You were all bright lighthouses on this challenging academic voyage. I am also grateful to Ms Maureen Welch Dolynskyj and all other academic and nonacademic staff of the School of Law who assisted me in one form or the other. I equally appreciate the company of fellow research students with whom I interacted during my studies. Thanks to the staff of University of Nottingham Library, especially for assisting with my many inter-library loan requests. Thanks also to SOAS Library London, Abul A`1ä Maududi Library of Madni Trust in Nottingham, the Office of the UN High Commissioner for Human Rights in Geneva, the Office of the Organisation of Islamic Conference (OIC) in Geneva and to Dilwar Hussein of the Islamic Foundation in Leicester for help with needed materials. Finally, I specially acknowledge the support and co-operation of my wife and children all the way through. I have "stolen" so much of their time during the course of my studies. In addition to the joy of the successful completion of this PhD, I hope to be able to compensate further for their "stolen" periods afterwards.
xv
CHAPTER
1
Introduction INTRODUCTORY
REMARKS
International human rights is the most popular theme today that cuts acrossevery aspect international influences law international and almost every aspect of modem of modern United the important is the that It of purposes other objective permeates all an relations. Nations (UN). 1 Almost every regional inter-governmental organisation today also become has human thus human The idea a the rights protection of rights. of acknowledges for State "sacred" the internationalism that the sovereignty tool veil of pierces of powerful been human has The dignity. human regularly reiterated also rights universality of sake of in 1948.2 (UDHR) Declaration Human Rights Universal the the of adoption of since Despite its popularity
and universal
acceptance however,
opinions
still
differ
by As human interpretation the observed rights. and scope of conceptual considerably about Weston, "(t)o say that there is widespread acceptance of the principle of human rights on the domestic and international plane is not to say that there is complete agreement about the 3 has This the their paradox of generated scope". substantive or rights nature of such 4 The discourse. human in international conceptual rights universalism and cultural relativism differences are neither meaningless nor trivial but emanate from the complexity and diversity ' SeeArticle I of the UN Charteron the Purposeand Principles of the UN. 1 UNTS, p.xvi. The UN SecretaryGeneralalso reiteratedin his Statementto the 55`hSessionof the Commission on Human Rights in 1999that human rights is "at the heart of every aspectof our work and every article of our Charter" (i. e. the United Nations Charter). SeeUN Doc. SG/SM/99/91 of 7 April 1999.Par. 3.
2 Adopted by UN General Assembly Resolution 217A(III) of 10 December 1948. Both the Proclamation of Tehran [UN Doc. A/CON. 32/41at3l(1968)] after the 1s`World Conference on Human Rights in Tehran in 1968 and the Vienna Declaration after the 2"d World Conference on Human Rights in Vienna in 1993 [UN Doc A/CONF. 157/23 of 12 July 1993] also reiterated the universality of human rights.
3 Weston,B., "Human Rights" in New EncyclopaediaBritannica, 151hEd. Vol. 20, p.713 at 714. Seealso Steiner,H.J., and , Alston, P., International Human Rights in Context,Law, Politics and Morals (2"d Ed. 2000) p.324 at 326. ° Thus it is arguedherein that "universality of"human rights differs from "universalism in" human rights. SeeChapter2, pp. 15-18below. Seealso e.g. Donnelly, J., Universal Human Rights in Theoryand Practice (1989) (defendsa universal conceptionof humanrights, but arguesalso that the conceptof humanrights is purely Western and foreign to non-western cultures.); Milne, A.J.M., Human Rights and Human Diversity (1986) (proposesthat human rights are not the same everywhereand arguesthat the conceptof human rights must not presupposeWesternvalues and institutions); Mutua, M., "The Ideology of Human Rights", (1996) 36 Virginia Journal of International Law, pp. 589-657 (arguesthat eventhough the conceptof human rights is not unique to Europeansocietiesthe philosophy of contemporaryhuman rights is essentially European).Seen.3 thereof for list of literature on discussionof different philosophical perspectivesof humanrights. See also Renteln,A. D., International Human Rights: Universalism versusRelativism(1990) p. 10 and literature cited there on the conceptualdifferencesabout humanrights.
1
of human society and civilisation.
Some scholars do argue that we need not address the
human focus differences but the of guaranteeing on problems rather anymore conceptual 5 ignores fact That the their argument continued violations universally. rights and preventing that the conceptual differences have major
consequences on the practical
universal
identified "a had UDHR drafters that human The the correctly rights. of observance of for importance is freedoms the(ir) the these greatest of of rights and understanding common full realization". 6 This demands a continued attempt at harmonising the different concepts, to despite the complexity achieve,
and diversity
of human society, a common universal
human being full human to the that every rights guarantee of ensures understanding focusing is the The to that realisation of on end a contribution research present everywhere. international human rights within the context of the application of Islamic law in Muslim States.
DEFINING
THE PROBLEM
AND METHOD
OF ANALYSIS
Islam is one of the major civilisations of the world and is claimed to be the fastest 7 States UN Muslim States that Many Member in the today. the are of world growing religion influences, law domestic law. Also, Islamic fully Law Islamic one or partly as either apply 8 While Muslim billion Muslims life than the globally. one of more way of way or another, States participate in the international human rights objective of the UN, it will be observed that they enter declarations and reservations on grounds of the Shari 'ah or Islamic law when 9 human they ratify international rights treaties. Also in their periodic reports to UN human Shari 'ah law in do Islamic States bodies Muslim Charter to treaty or refer many and rights 10 their arguments. There is however a general view, especially in the West, that Islamic law is incompatible with the ideals of international human rights, and thus human rights are not At is law. Islamic dispensation the time, there the same also some of realisable within pessimism in the Muslim world about the disposition of the current international human human fact, UN. Due inter that to the the rights are best protected by alia, of rights objective 5Seee.g. Bobbio, N., TheAe of Rights, (1996) pp.12-13. 6 Emphasisadded.Seethe 7` Preambularparagraphof the UDHR. 7Seee.g. Freamon,B.K., "Slavery, Freedom,and the Doctrine of Consensusin Islamic Jurisprudence",(1998) 11 Harvard Human Rights Journal, p. 1 n.2 for list of citations on the fast growth of Islam and importanceof Islamic law in the world today. 8 ibid., n-59 See g. United Nations, Multilateral Treaties Deposited with the Secretary General, Status e. as at 31/12/1999, Vol.!, Part 1, Chapters ItoXl. 1°See e.g. Sudan's 2°d Periodic Report on the ICCPR UN Doc CCPR/C/75/Add. 2 Initial Arabia's Saudi 13/03/97 of and Report on the Child Convention - UN Doc. CRC/C/61/Add. 2 of 29/3/2000.
2
States within their different cultures and domestic laws, the relevance of Islamic law to the effective application of international human rights law in the Muslim world cannot be overemphasised. As Muslim States possess the sovereign right of applying Islamic law within their jurisdictions,
the question of whether international human rights can be effectively
guaranteed within the application of Islamic law remains very important in the international human rights discourse. Previous research on this subject has mostly emphasised the classical doctrines of Islamic law and an exclusionist interpretation of international human rights law. This has obscured many commonalities that do exist between Islamic law and international human rights law and has continued to strengthen the theory of incompatibility
between them. The
incompatibility theory puts international human rights law at a sort of crossroads in Muslim States that apply Islamic law. Apart from much very general literature on this important subject, the more prominent works are An-Naim's
Towards an Islamic Reformation11 , Mayer's Islam and Human Rights12 and Monshipouri's Islamism, Secularism, and Human
11An-Na'im, A. A., Towards an Islamic Reformation, Civil Liberties, Human Rights, and International Law, (1990). Other works of An-Na'im on this subject include: "The Position of Islamic States Regarding the Universal Declaration of Human Rights" in Baehr, P., et. al., (eds.) Innovation and Inspiration: Fifty Years of the Universal Declaration of Human Rights (1999) pp. 177-192; "Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives" (1990) 3 Harvard Human Rights Journal, pp. 13-52; "Toward an Islamic Hermeneutics for Human Rights" in An-Na'im, A. A., et. al., (eds.) Human Rights and Religious Values: An Uneasy Relationship? (1995) pp. 229-242; "Islamic Law and Human Rights Today" (1996) Interights Bulletin, No. 1,3; "Problems of Universal Cultural Legitimacy for Human Rights" in An-Na'im, A. A., and Deng, F. M., (eds.) Human Rights in Africa: Cross-Cultural Perspectives (1999) pp. 331-367; "Towards a CrossCultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment" in An-Na'im, A. A. (ed. ) Human Rights in Cross-Cultural Perspectives (1992) pp. 19-43; "Universality of Human Rights: An Islamic Perspective" in Ando, N., (ed. ) Japan and International Law: Past, Present and Future (1999) pp. 311-325. Professor An-Nai'm's work subjected traditional Islamic law to the jurisprudence of international human rights, disregarding any Islamic jurisprudential justifications. His main proposition is for an Islamic law reformation "from within" to conform with international human rights principles through a reversed process of "naskh" (i. e. abrogation of certain verses of the Qur'an by others), whereby the application of some Medinan revelations of the Qur'an would be abandoned in favour of other Meccan revelations. Some writers on the subject have however questioned the practicality of that proposition. See e.g. Sachedina, A., "Review of Abdullahi Ahmed An-Na'im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law" (1993) 25 International Journal of Middle East Studies, p. 155-157; and Manzoor, P., "Human Rights: Secular Transcendence or Cultural Imperialism? " (1994) 15 Muslim World Book Review, No. 1, p. 3 at 8. 12Mayer, A. E., Islam and Human Rights, Tradition and Politics (3`d Ed. 1999). Other works of Mayer on this subject include: "Universal versus Islamic Human Rights: A Clash of Cultures or a Clash with a Construct? " (1994) 15 Michigan Journal of International Law, p. 306-404; "Islam and the State" (1991)12 Cardozo Law Review, p. 1015-1056; "Current Muslim Thinking on Human Rights" in An-Nai'm, A. A., and Deng, F. M., (eds.) Human Rights in Africa: Cross-Cultural Perspectives (1999) pp. 131. The main thesis of Professor Mayer's work is that modern Islamic human rights schemes are dubious, in the sense that they borrow their substance from international human rights but use Islamic law to limit human rights applications. She relied mostly on traditional interpretations of the Shari 'ah and the practice in some Muslim countries based on those traditional interpretations, disregarding other legally valid alternative interpretations of the Shari `ah in that regard. Although she referred to the fact that "Islamic heritage offers many philosophical concepts, humanistic values, and moral principles that are well adapted for use in constructing human rights principles", she did not elaborate on those alternatives. One reviewer has thus observed that: "As to the crucial task of comprehensively elaborating a methodologically sound and truly contemporary Islamic human rights teaching based on the premodern Islamic heritage, she has been wise to leave this to Muslim believers and to the internal doctrinal debate among them". See Troll, C. W., "Book Review of Islam and Human Rights: Traditions and Politics By Ann Elizabeth Mayer" (1992) 3 Islam and ChristianMuslim Relations, No. 1, p. 131 at 133.
3
13 East. While these works address some of the problems identified in Middle Rights in the this research, their approaches differ significantly from the one adopted in the present thesis. Their approach has been generally monological, and reflects what Watson has described as law human international interpretations that the are or must rights the presumption of current 14 be valid, with everything else being adjusted to maintain that assumption. The argument by bound international human States treaties they is Muslim are that rights ratify when often its invoke "may State Party the law international to treaty that of provisions not the a a rule 15 In practice however, Muslim its failure to perform a treaty". internal law as justification for States do not generally plead the Shari `ah or Islamic law as justification for "failure to letter the They human international against not often argue rights obligations. perform" their law human international they interpretations but law which, rights the of some against of into Islamic does take consideration. values not claim, This thesis thus aims to fill an important lacuna in the international human rights discourse by proposing a synthesis between two extremes and providing
an alternative
law. human international law between Islamic rights the and relationship perspective to Using arguments from both Islamic jurisprudence and international human rights practice, is law human international is the the that rights the aim to challenge observance of argument impossible within
an Islamic legal dispensation.
The thesis will
theoretically
engage
international human rights practice in dialogue with Islamic jurisprudence and then evaluate dialogue. The that States the Muslim human of scope within the rights policy of modern importance of this dialogical approach was observed by the General Rapporteur, Mrs. Mary Robinson, in the conclusions adopted at the end of the inter-regional meeting organised by Strasbourg Human Rights in Conference World Council Europe the at on the advance of of in 1993, that: "We must go back to listening. More thought and effort must be given to enriching the human rights discourseby explicit referenceto other non-Westernreligions and 13Monshipouri, M., Islamism, Secularism, and Human Rights in the Middle East, (1998). Other works of Monshipouri on this subject include: "Islamic Thinking and the Internationalization of Human Rights" (1994) 84 The Muslim World, No. 2-3, Declaration Human Universal Century Rights: Progress and Obstacles" World Half Muslim 217-239; "The the of a after pp. (1998) 16 Netherlands Quarterly of Human Rights, No. 3., pp. 287-314; Monshipouri, M., and Kukla, C. G., "Islam, Democracy, and Human Rights: The Continuing Debate in the West, " (1994) 3 Middle East Policy, No. 2, pp. 22-39. The central theme of Professor Monshipouri's work is that "fusing secular and Islamic principles can effectively promote human dignity". See Monshipouri, M., Islamism, Secularism, and Human Rights in the Middle East, supra, p. 25. One reviewer has however observed that while "he judges specific rules of Islamic law against conceptual values of secularism for compatibility (he) does not articulate the parallel essential values of Islam, let alone place specific secularist human rights norms against them for judgment. " See Quraishi, A., "Book Review of Islamism, Secularism, and Human Rights in the Middle East By Mahmood Monshipouri" (2000) 22 Human Rights Quarterly, p. 625 at 628. 14Watson, J.S., Theory & Reality in the International Protection of Human Rights (1999) p. 15.
"Art. 27 Vienna Conventionon the Law of Treaties(1969). Seealso e.g. Mayer, E.A., (1999) supra, note 12 abovepp. 1012.
4
between linkages By tracing the traditions. constitutional values on the one cultural hand and the concepts, ideas and institutions which are central to Islam or the HinduBuddhist tradition or other traditions, the base of support for fundamental rights can be expanded and the claim to universality vindicated. The Western World has no but diversity basic human We must embrace cultural rights. monopoly or patent on 16 not at the expense of universal minimum standards" .
The hypothesis herein is that although there are some differences of scope between Islamic law and international human rights law, that does not create a general antithesis between the two. The differences can be meaningfully discussed and the noble ideals of international human rights realised in the Muslim world if the concept of international human law Islamic than from the themes be rather of within convincingly established rights can fact is that the law. This the Islamic it to positive on premised alien expressing as a concept from is through support evidential means to promote any concept within a particular culture important justice Also, its legitimising are since morality and substantive principles. within human international law both Islamic rights to the and of philosophy applicable principles law,
the principle
of justification
in be accommodated need
proposing
practical
human international law between Islamic differences and harmonisation of the conceptual issues be differing jurists Islamic jurisprudential law. Thus will the on arguments of rights law. Applying human international interpretations the rights of modern analysed vis-ä-vis the justificatory
hard-line from for traditional the thesis paradigm shifts argues principle
interpretations of 17 (welfare) international human rights law. The Islamic legal doctrine of maslahah and the
interpretations
of classical Islamic
law and also from exclusionist
European human rights "margin of appreciation"18 doctrine are explored in establishing the in arguments this thesis.
STRUCTURE
OF THE THESIS
The thesis is composed of 9 Chapters and divided into three parts. Chapter 1 is the introduction.
Part One, consisting of Chapters 2 to 5, addresses the conceptual issues. In
Chapter 2 the nature and evolution of international human rights law is examined while 16SeeCouncil of Europe Doc. CE/CMDH (93) 16, of 30 January 1993,at p.3. Seealso Robinson, M., "Human Rights at the Dawn of the 21' Century" (1993) 15Human Rights Quarterly, 629 at 632. 17Karnali has observedthat the Islamic law doctrine of "maslahah" can strike a balancebetweenpublic expectationsof Islam. identification SeeKarnali, M. H., "Have We Neglected the SharI'ah Doctrine of its with meaningful and government Maslahah?" (1988) 27 Islamic Studies,p.287 at 288.
18According to Macdonald, the "margin of appreciation" is more of a principle of justification under the European human rights regime. See Macdnold, R. St. J., "The Margin of Appreciation" in Macdonald, R. St. J., et al., (eds.) The European Systemfor the Protection ofHuman Rights (1993) p. 83 at 123.
5
Chapter 3 analyses the nature and evolution of Islamic law. This establishes a general framework of reference for the thesis in respect of both international human rights and Islamic law. The approach adopted in those two chapters is different from the traditional "end of history" approach usually followed, especially in the analysis of Islamic law. The possible and continued evolution of both International human rights law and Islamic law in directions that promote their harmonious co-existence in Muslim
States to ensure the
is individuals State highlighted. Chapter the the against misuse of apparatus of protection of 4 examines human rights in the context of Islamic law and researches into the sources, the jurisprudence and the legal theories of Islamic law to discover whether the theory and practice of human rights can be established from within Islamic law. In doing that, the legal beyond theoretical to necessary practicalities postulations examine mere research goes leading to identification of the commonalties and the conceptual differences between the two legal dispensations. Chapter 5 then examines and traverses the conceptual differences identified and also discusses the justificatory
between a necessary synthesis principle as
international human rights law and Islamic law. Part Two, consisting of Chapters 6 and 7, is a comparative legal analysis of the International Bill
Civil Covenant Rights. The International on of
(ICCPR)19 and the International
Covenant on Economic,
and Political
Rights
Social and Cultural
Rights
(ICESCR)20 are examined in the light of Islamic law in Chapters 6 and 7 respectively. The Rights Committee and the Committee on Economic, Social and Human the practices of Cultural Rights are respectively analysed in respect of the rights guaranteed under each of the two Covenants. Due to the topicality of the question of women's rights in the international human rights/Islamic law debate, necessary Articles of the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW)21 are also referred to in the
examination of women's rights under the two Covenants. The juristic views of the different schools of Islamic jurisprudence are then examined on each aspect of the rights guaranteed under the two Covenants. The Islamic juristic justifications
in respect of Islamic views are
analysed vis-ä-vis the liberal principles of international human rights law as interpreted by the Committees and vice versa. On grounds of the justificatory principle earlier established, a thesis of inclusive interpretation is advanced to facilitate every legitimate shift from a static traditional Islamic jurisprudence and from an exclusionist interpretation of international human rights law. 19Adopted by General Assembly Resolution 2200A(XXI) 20Adopted by General Assembly Resolution 2200A(XXI)
of 16 December 1966; 999 UNTS 171. of 16 December 1966.993 UNTS, p. 3.
6
Part Three is the casestudies,where in Chapter 8, the international human rights policy different Islamic States Muslim their of phases within are examined and practices of selected law application. For the purposes of Chapter 8 it is necessary to define the notion of the modem Muslim State in this thesis. The Muslim world is today divided into separate sovereign nation22 A few of these States have been specifically declared as Islamic Republics, some states. State, is in Constitutions Islam the indicate the that their while most are of religion others Muslim basis States Muslim identifiable their the population and predominant of on as only the allegiance of the people to Islam. A different single criterion adopted in this research for defining the modern Muslim States is membership of the Organisation of Islamic Conference (OIC). That all the 56 Member States of the OIC are identifiable
as Muslim States is
is Islamic "to Organisation, first by the the promote which charter-objective of supported 23The States exist as independent sovereign States but are States". solidarity among member theoretically linked by their Islamic heritage, traditions and solidarity. For prudence, the Muslim States are in this research divided into four main categories in their application of Islamic law, and six States have been selected for case studies in Chapter 8. The main focus is on legislation, State policies and judicial interpretations in the selected countries as general human international have States how Muslim to rights responded modern case studies of State law. law Islamic different their as of applying phases within Finally, the findings and recommendations of the research are presented in Chapter 9 as the concluding chapter of the thesis.
21Adopted by GeneralAssembly Resolution 34/180 of 18 December1979; 1249 UNTS 13.
22For analysis of the evolution of the Muslim world into modem nation states See e.g. Baderin. M. A., "The Evolution of Islamic Law of Nations and the Modem International Order: Universal Peace through Mutuality and Co-operation" (2000) 17 The American Journal of Islamic Social Sciences, No. 2. pp. 57-80. See also Nasr, S.V. R., "European Colonialism and the Emergence of Modem Muslim States" in Esposito, J.L., The Oxford History of Islam (1999) pp. 549-599; Khadduri, M., The Islamic Law of Nations: Shaybani 's Siyar, (1966) pp. 19-20; and al-Ghunaimi, M. T., The Muslim Conception of International Law and the Western Approach, (1968) pp. 3 8-54. 23See Art. 11(A) (1) Charter of the OIC. The OIC as at February 2001 had 56 Member and 4 Observer States. The Members States are: Afghanistan, Republic of Albania, Algeria, Azerbaijan, Bahrain, Bangladesh, Republic of Benin, Brunei, Burkina Faso, Republic of Cameroon, Chad, Islamic Republic of Comoros, Djibouti, Egypt, Gabon, Gambia, Guinea, GuineaBissau, Guyana, Indonesia, Islamic Republic of Iran, Iraq, Jordan, Kazakhstan, Kuwait, Kyrghyzistan, Lebanon, Libya, Malaysia, Islamic Republic of Maldives, Mali, Islamic Republic of Mauritania, Morocco, Mozambique, Niger, Nigeria, Oman, Islamic Republic of Pakistan, Palestine, Qatar, Kingdom of Saudi Arabia, Senegal, Sierra Leone, Somalia, Sudan, Surinam, Syria, Tajikistan, Togo, Tunisia, Turkey, Turkmenistan, Uganda, United Arab Emirates, Uzbekistan, and Yemen. The Observer States are: Republic of Bosnia and Herzegovina, Central African Republic, C6te d'Ivoire, and Thailand. See the OIC Website at: http: //www. oic-un. orglabout/mcmbers. htm [12/2/2001].
7
PART ONE:
Conceptual Issues
CHAPTER
2
The Nature and Evolution of International Human Rights Law It is essential to begin by establishing a general framework of reference in respect of not delve into the complex ' focus but human the will on the rights, with concept of philosophical arguments associated international human rights law for this thesis. We will
development of the international protection of human rights and the basis and legality of international human rights law. The question of universalism and cultural relativism will also be revisted as part of the background for latter arguments in the thesis.
WHAT
ARE HUMAN
RIGHTS?
Human rights are the rights of humans. They are the rights of all human beings in full from derive beings. They human because We to them we are simply are entitled equality. the "inherent dignity of the human person"2 and have been defined as "those claims made by by behalf for themselves supported some theory which concentrates or on men, of other men, 113. These being, human humanity the of mankind. a member of man, on man as a on .. from has life, to to society as a a right expect person of which every standards claims relate human being. In the words of Umozurike:
"Human rights are thus claims, which are invariably supported by ethics and which its by law, be on official managers, by supported made especially on society, should individuals or groups on the basis of their humanity. They apply regardless of race, colour, sex or other distinction and may not be withdrawn or denied by governments, people or individuals. "4
' For detailedphilosophical and critical analysisof the theory of human rights Seee.g. Winston, M. E., (ed.) ThePhilosophy of Human Rights (1989); Shestack,J.J., "The Jurisprudenceof Human Rights", in Meron, T., (ed.) Human Rights in International Law: Legal and Policy Issues,Vol. 1, (1984) pp.69-113; Nino, C.S., TheEthics of Human Rights (1991); Rosenbaum,A., (ed.) ThePhilosophy of Human Rights, International Perspectives(1980); and Douzinas,C., TheEnd of Human Rights (2000). 2 Seee.g. The 2"dPreambularparagraphof both the International Covenanton Economic, Social and Cultural Rights (ICESCR), 993 UNTS 3. and the International Covenanton Civil and Political Rights (ICCPR), 999 UNTS 171.Seealso Is' Prembularparagraphof the Universal Declaration of Human Rights (1948). 3 Dowrick, F. E., (ed. ) Human Rights: Problems, Perspectives and Texts (1979) p. 8. Umozurike, U. O., The African Charter on Human and Peoples' Rights (1997) p. 5.
8
Scholars have advanced different views concerning the origins of the human rights idea. While some authors assert that "human rights are as old as people are", others hold that human rights should be listed as "new business". 5 A better perspective than considering the idea of human rights either as old or new business, is to conceive it as an evolutionary phenomenon that has matured over time through the different stages of human civilisation has Lauren thus observed that: enlightenment. and
"The historical evolution of visions of international human rights that continues to this day started centuries ago with efforts attempting to address these difficult and began It as soon as men and women abandoned nomadic questions. universal had heard in long before societies, ever of the settled organized anyone existence and more recent expression "human rights, " or before nation-states negotiated specific international treaties. " 6
THE EMERGENCE
OF THE INTERNATIONAL
HUMAN
RIGHTS
REGIME?
Although the historical origins of human rights dates back into ancient times and often linked with the idea of natural rights, the First and Second World Wars, and the periods between them played the antecedent roles for the emergence of the international human 8 during individuals The treatment the and groups opprobrious savage of regime. and rights human deal beings State to the the the with of unwholesomely use apparatus of period, and Concern for international human beings. for the protection the of concerns protection created of minority groups in Central and Eastern Europe after the First World War was the first human Two in for international human the rights notions emerged rights regime. attempt an process, i. e. the notion of individual rights and that of collective rights. The first was for the 9 for individuals the the second and protection of minorities. protection of the rights of Attempts at including human rights provisions in the Covenant of the League of Nations, that was to be created, was however unsuccessful.
What emerged were separate minority
protection treaties and State declarations guaranteeing the protection of the rights of minorities.
The League of Nations however performed a supervisory role over the
5 See
e.g. Cleveland, H., "Introduction: the Chain Reaction of Human Rights", in Henkin, A. H., (ed. ) Human Dignity: The Internationalization of Human Rights (1979) p. ix.
6 Lauren, P.G., TheEvolution International Human Rights, VisionsSeen(1998) 5. See of p. also generally Ishay, M. R., (ed.) TheHuman Rights Reader:Major Political Essays,Speechesand Documentsfrom the Bible to the Present(1997). 7 See
e.g. Sohn, L. B., "The New International Law: Protection of the Rights of Individuals Rather than States" (1982) 32 American University Law Journal, 1-64. 8 See e.g. Weston, B., "Human Rights" in New Encyclopaedia Britannica, I5`h Ed., Vol. 20, 713; Douzinas, C., The End of p. Human Rights (2000); Szabo, I., "Historical Foundations of Human Rights and Subsequent Developments" in Vasak, K., (ed. ) The International Dimensions of Human Rights (1982) Vol. 1, pp. 11.; Cassese, A., Human Rights in a Changing World (1990) pp. 1-23.
9
10 international obligations created,which were consideredof concern. Private endeavours continued both within and outside the League of Nations for the realisation of an international human rights regime.
In 1929 the Institute of International"
Law, a private body of distinguished authorities on international law in Europe, the Americas and Asia, adopted the Declaration of the Rights of Manl1, in which it considered it the duty of every State to recognise, inter alia, the equal rights of every individual to life, liberty and property. The Institute also considered that every State had a duty to accord to everyone within its territory the full and entire protection of these rights without distinction as to nationality, sex, race, language or religion. Although the Declaration was not a binding document, it contributed to the popularisation of the idea of international human rights in the years immediately after its adoption. The Declaration also set a pace for a new relationship between the individual and the State under international law. Marshall Brown, an editor of the American Journal of International Law in 1930 reflected the Declaration's significance in the then emerging international order as follows: "This declaration... states in bold and unequivocal terms the rights of human beings, "without distinction of nationality, sex, race, language and religion, " to the equal right to life, liberty and property, together with all the subsidiary rights essential to It aims not merely to assure to the enjoyment of these fundamental rights. individuals their international rights, but it aims also to impose on all nations a It thus standard of conduct towards all men, including their own nationals. repudiates the classic doctrine that states alone are subjects of international law. Such a revolutionary document, while open to criticism in terminology and to the influence fail, it has juridical however, to that exert an on not cannot objection value, the evolution of international law. It marks a new era which is more concerned with the interests and rights of sovereign individuals than with the rights of sovereign 12 " states.
The fascist atrocities during the Second World War further aroused the asperity of humanity and moved the world community to call for formal international measures aimed at ensuring the protection of human rights and achievement of world peace and security. The Allies determined even before the end of the war that an international commitment to the protection of human rights should be a part of the post Second World War settlement. Thus, in the preamble of the Charter of the United Nations Organisation which emerged after the
9 See Szabo, I., (1982) ibid, 21. p. 10See e.g. Article 12 of The Polish Minorities Treaty (1920). See also Cassese, A., (1990) supra, note 8 above, pp. 17-21; Weston, B., supra, note 8 above, p., 717; and Ezejiofor, G., Protection of Human Rights Under Law (1964) pp. 38-50. 11See (1941) 35 American Journal of International Law pp. 662-665. 12See (1930) 24 American Journal of International Law p. 127.
10
13the Member States declared their determination "... to reaffirm faith in fundamental war, human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small... ". They also made it clear in Article 1(3) that one of the purposes of the UN was "(t)o achieve international co-operation in... promoting and for freedoms for fundamental for human all without rights and encouraging respect distinction as to race, sex, language, or religion... ". The UN Member States also pledged themselves under Article 56 of the Charter "to take joint and separate action in co-operation with the Organisation for the achievement of the for, include "universal in Article 55", and observation of, respect which purpose stated human and fundamental freedoms for all without distinction as to race, sex, language, or it human Charter the Although to " the rights, of contents contains no provisions as religion. for international human It the dawn the establishment the provided rights regime. of signalled included functions (ECOSOC) Social Council Economic making whose and of an "recommendations for the purpose of promoting respect for, and observance of, human rights development described for 5A4 has freedoms Henkin the fundamental as succinctly all. and follows: "The UN charter ushered in a new international law of human rights. The new law buried the old dogma that the individual is not a "subject" of international politics is its behaviour law toward that a matter of nationals own a government's and and domestic, not international concern... It gave the individual a part in international It his independently in international law, also gave of government. and rights politics the individual protectors other than his government, indeed protectors and remedies 15 his government". against
The UDHR was the first UN document adopted containing a list of internationally 16 General Assembly the It human of resolution simple of was adopted as a recognised rights. the UN in 1948.17 The rights in the UDHR were stated in very general terms and some of its principles are considered to have become part of international customary law because they 13The UN Charter was adopted on June 26 1945 and is regarded as "the constitution of the organized world community after World War II" and is binding between all the Member States of the UN. See Ermacora, Nowak and Tretter (eds.) International Human Rights: Documents and Introductory Notes (1993) p. 3.
14SeeChapter 10 of the UN Charter.
15See Henkin, L., (ed. ) The International Bill of Rights: The Covenant on Civil and Political Rights. (1981) p. 6.
16The rights coveredby the UDHR are Life, Liberty and Security of Person(Art. 3), Recognition as a person(Art. 6), Equality before the law (Art. 7), Effective legal remedies(Art. 8), Due processof law (Art. 9,10 & 11), Freedomof Movement (Art. 13), Asylum (Art. 14), Nationality (Art. 15), Marriage and Family (Art. 16), Property (Art. 17), Freedomof Thought, Conscienceand Religion (Art. 18), Freedomof Opinion and Expression(Art. 19), PeacefulAssembly and Association (Art.20), Participation in Government(Art.21), Social Security (Art. 22), Work and Equal Pay for Equal Work (Art.23), Rest and Leisure (Art. 24), AdequateStandardof Living (Art. 25), Education(Art.26), Cultural Life (Art. 27), Prohibition of Slavery or Servitude(Art. 4), Prohibition of Torture or Cruel, Inhuman or DegradingTreatment(Art. 5), Prohibition of Arbitrary Interferencewith Privacy (Art. 12).
11
18 for framework has UDHR by States The lead to rights accepted not served as generally. but international human treaties also many national and regional rights only subsequent human rights documents. 19 In 1966, the International Covenant on Civil and Political Rights (ICCPR)20 and the International Covenant on Economic, Social, Cultural Rights (ICESCR)21 were adopted, and both entered into force in 1976. The two Covenants together with the UDHR constitute the International Bill of Rights. The rights guaranteed under the two Covenants cover nearly all 22 international from Apart human by the the basic values cherished society. every civilised bill of rights, the UN has also adopted other ancillary international treaties and declarations diplomatic agents, minorities, the rights of women, children, refugees, stateless persons, on for international human the the treaties There of protection t. rights are also specific e. c. human person against atrocities such as genocide, racial discrimination, apartheid, slavery, 23 labour, forced torture, e.t. c. Regional organisations such as the Council of Europe, the Organisation of American States, the Organisation of African Unity, and the League of Arab States have also adopted different regional human rights treaties in recognition of the noble ideals of international human rights. The basic regional human rights treaties are the European Convention for the 24 The European Social (1950), Protection of Human Rights and Fundamental Freedoms 26 25 The African Charter (1969), Charter (196 1), The American Convention on Human Rights (1994)28. Of Rights Human Arab Charter (1981)27 Rights People's the Human of and and on in by Islam Rights Human is Cairo Declaration the thesis adopted on also relevance to this the Organisation of Islamic Conference in 1990.29 All the above international treaties and declarations on human rights confirm, as rightly idea by "virtually human by Henkin, the the rights acceptance of observed
all states and
1710 December 1948, GAOR, 3`d Sess., Res.217A. 18See Lillich, R. B., "The Growing Importance of Customary International Human Rights Law" (1995-96) 25Georgia Journal of International and Comparative Law, Nos. 1&2,1-30. 19See Hannum, H., "The Status of the Universal Declaration of Human Rights in National and International Law" (1995-96) 25 Georgia Journal of International and Comparative Law, Nos. I&2,287-396.
20999 LINTS 171. 21993 UNTS 3.
22See Chen, L., An Introduction to Contemporary International Law, (1989) pp. 209-211.
23SeeUN Human Rights Treaty Website at: http:/hvww.unhchr.ch/html/intlinst.htm [10/2/2001]. 24Adopted on 4 November1950. E.T. S. No.005. 25Adopted on 18 October, 1961. E.T. S. No. 035.
26Adopted on 22 November1969. O.A. S.T.S. No.36 at 1. 27Adopted on 27 June 1981. OAU Doc.CAB/LEG/67/3 rev. 5; (1982) 21 I. L. M. 58.
28Adopted 15 September 1994. Reprinted in (1997) 18 Human Rights Law Journal, 151. See Rishmawi, M., The Arab Charter on Human Rights: A Comment" (1996) 10 Interights Bulletin, No. 1,8-10 for an overview of the Arab Charter. 29Adopted on 5 August 1990. The Declaration was submitted by the OIC to the UN prior to the 2"d World Conference on Human Rights in Vienna. See UN Doc. A/CONF. 157/PC/62/Add. 18 (1993).
12
societies" of the contemporary world 30 differences". economic or other
"regardless of historical,
CATEGORISATION
OF HUMAN
cultural,
ideological,
RIGHTS
Human rights are today classified either by subject, object or generation. Thus, we talk of civil
and political
rights distinct from economic, social and cultural rights, and of
individual rights separate from collective or group rights. We also talk of first generation, second generation, and third generation rights. The civil and political rights are often referred 31 to as the first generation rights. They are the traditional rights relating to the liberty and justice that individuals are entitled to expect from the State. They are the favourites of 32 human Western States, some of whom consider them as the only true rights. The ICCPR from Apart internationally the list the the rights. and political recognised civil of contains individual the rights, which mostly civil and political rights are right of self-determination, State. demand In through the individual the these the were sought rights past, of may every law human international Today, disobedience rights and revolution. channel of civil for demand these individual legal the of rights. guarantee the and with channels provides
33
Economic, Social and Cultural rights are the so-called second generation rights. They be They States have to take to may called promote. action positive which are mostly rights the sustenance or enjoyment rights, and are strongly advanced by socialist and developing 34 The ICESR contains a list of internationally recognised economic, social and nations. human dignity, inevitability for the economic, the Despite their of sustenance cultural rights. "utopian aspirations", non-legal and nonas social and cultural rights are often considered justiciable. 35 Shue however argues strongly that there is a basic or fundamental human right to subsistence which the economic, social and cultural rights fulfil. He contends that justice and international law requires the rich nations to share their abundant resources with the 36 beings human the Human millions of who are chronically malnourished all over world. rights would certainly be meaningless in a world where one part of humanity is in abundance 30See Henkin, L., (1981) supra, note 15 above, p. 1.
31Seee.g. Harris, D.J., Casesand Materials on International Law (5`hEd. 1998)p.625; Weston, B., supra, note 8 above. V,715; and Sohn, L.B., (1982) supra, note7 above,p.32. Seee.g. U. S. position in UN Doc. A/40/C3/36, p.5 (1985) that economic,social and cultural rights were "societal goals" rather than human rights. "See e.g. Optional Protocol Ito the ICCPR; 999 UNTS 171.
34SeeHarris, D.J., (1998) supra, note 31 above;Weston, B. supra at note 31 above; and Sohn,L. B., (1982) supra, note 31 above. 35See e.g. Cranston, M., What Are Human Rights (1973) 9-17. p. 36See generally, Shue, H., Basic Rights: Subsistence, Affluence and US Foreign Policy (2"d Ed., 1996).
13
but yet feels no obligation for another part of it in abject poverty. The notion of generations it for long had instance, For if be human a not well addressed. misleading rights can thus of in important from the blurred rights cultural the economic, social and time role of attention Many scholars therefore reject this notion of the enhancement of human dignity. 37 While the civil and political rights might have been pursued more vigorously generations. in international law for political and ideological reasons, this does not mean that the 38 important. less are rights cultural and economic, social is first above mentioned Supplementary to the so-called and second generation of rights These human not rights, are collective third rights. the of generation of a notion also between based described men. They individual rights. on solidarity as solidarity rights are born human Vasak, Karel of third are the its rights generation According to proponent, major 39 The to indispensable brotherhood their right solidarity. of men and the obvious development, right to peace, and right to a healthy and balanced environment are prominent human This human also rights of list third group the rights. of the generation proposed of on hand developed between and for one on nations affluent co-operation aspirations expresses With humanity. the benefit for the the of the developing poor nations of other, world on to the a right of reflective are treaties which protection, on environmental of exception healthy and balanced environment, there is no UN international treaty yet on the third 40 human rights. generation of Although the categorisation of human rights may serve the useful purpose of easy identification of particular rights, there is the need to emphasise the treatment of human fact that all human rights has the Assembly General thus UN The stressed totality. rights as a 41 human interdependent. This of indivisible compartmentalisation rigid will prevent a and are human law. international ideals the rights of rights and ensure a wholesome realisation of
37See Challenge", in Eide, A., et al (eds.) Universal A Rights; Cultural Social "Economic, Rosas, A., Eide, A., and and e.g. Economic, Social and Cultural Rights: A Textbook. (1995) p. 27.
3$SeeVan Hoof, G.J.H., "The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of SomeTraditional Views", in Alston, P., and Tomasevski,K., (eds.) TheRight to Food. (1984) pp-97-110 (arguesthat it is wrong to construea both integrated that dichotomy approach covers setsof rights.). the two a more and suggests of rights, of groups strict
39See Vasak, K., "For the Third Generation of Human Rights: "The Rights of Solidarity", Inaugural Lecture to the le Study Session of the International Institute of Human Rights, Strasbourg, 2-27 July, 1979. 40The UN General Assembly has however adopted the Declaration on the Right to Development at its 97`h plenary meeting on 4`h December 1986, and recognised in its preamble that "development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom. " The right to development also continues to be a subject of discussion within the activities of the UN Commission for Human Rights. See e.g. The UN Secretary General's Report on Right to Development to the 55`h Session of the UN General Assembly - UN Doc. A/55/283 of 8 August 2000. 41See e.g. GA Res. 32/130 of 16 December 1977, and also Paragraph 5 of the Declaration of the World Conference on Human Rights, Vienna 1993, UN Doc. A/CONF. 157/23.
14
UNIVERSALISM
IN INTERNATIONAL
HUMAN
RIGHTS LAW
The question of universalism in international human rights law has been very intensely debated42 It is noted however that the "universality of' human rights has often generally been confused with "universalism in" human rights within the international human rights discourse. Although the two concepts are inter-related, each refers to a different aspect of the between distinction two An the human the concepts of appreciation rights. universalisation of is very important for a realistic approach to the question of universalism in international human rights law. "Universality of' human rights refers to the universal quality or global acceptance of the human rights idea as elaborated above, while "Universalism in" human rights relates to the 43 human idea. The human interpretation and application of the of rights universality rights has been achieved over the years since the adoption of the UDHR in 1948, and is evidenced by the fact that there is no State today that will unequivocally accept that it is a violator of human rights. Today, all nations and societies do generally acknowledge the human rights idea, thereby establishing its universality. However, universalism in human rights has not been so achieved. Universalism
connotes the existence of a common universal value
law. The human international interpretation for the rights and application of consensus fact by is that the lack universalism continues evidenced universal consensus of such current 44 UN. to be a subject of debate within the international human rights objective of the Universalism is often confronted by the cultural relativist argument at every opportunity in Conference Vienna during the discourse. For human international on the example rights Human Rights, representatives of some African, Asian, and Muslim States challenged the being human international in west-centric and as rights present concept of universalism insensitive to non-western cultures. Prior to the conference, a group of Asian States had adopted the Bangkok (Governmental) Declaration recognising the contribution that can be made by Asian countries to the international human rights regime through their diverse but 5 from Asia Pacific region had also An NGO the traditions. coalition rich cultures and 42See e.g. Symposium on "Universalism and Cultural Relativism: Perspectives on the Human Rights Debate" (1997) Human Rights at Harvard, April 5,1997, pp. 9-38. See also Steiner, H. J., and Alston, P., International Human Rights in Context, Law Politics Morals (2"d Ed., 2000) p. 366. 43Linguistically the suffix "-ity" denotes the quality, condition or degree of a phenomenon while the suffix "-ism" denotes its system, principle, result or practice. See e.g. Pearsall, J., and Trumble, B., (eds) The Oxford English Reference Dictionary (Oxford: Oxford University Press, 2d Ed., 1996) p. 746 and p.749. 44See e.g. Yash, Ghai, "Human Rights and Governance: The Asia Debate" (1994) 15 Australian Yearbook of International Law 11. See also generally Renteln, A. D., International Human Rights: Universalism Versus Relativism (1990); Bauer, J.R., and Bell, D. A., (eds.) The East Asian Challenge for Human Rights (1999); and also Smith, J., (ed.) Human Rights: Chinese and Dutch Perspectives (1996).
asSee"Report of the Regional Meeting for Asia of the World Conferenceon Human Rights" (Bangkok, March 29 April 2, -
15
"a Rights NGO Human the Bangkok Declaration the of emergence promoting on adopted Asia the pacific of wisdom and richness new understanding of universalism encompassing in law Islamic "46 States Muslim that arguments also often advance similar apply cultures. 47 law. respect of Islamic When the UDHR was adopted by the UN General Assembly in 1948 it was very clear from the outset that the human rights it guaranteed were intended to be universal. Apart from it being titled a "Universal Declaration", the General Assembly proclaimed it as "a common for The the for to respect need promote nations". and all all peoples achievement standard of international their to universal and effective through secure and measures, and national rights 48 UN The identified in Declaration. then the was were also recognition and observance 9 Although States Member the States. 58 Member the opposed of none constituted of only human rights idea nor its universalisation, 8 of them (Byelorussian SSR, Czechoslovakia, Poland, Saudi Arabia, South Africa, USSR, Ukrainian SSR, and Yugoslavia) abstained from differences interpretational due Declaration to for the on the adoption of principally voting 50 have States While its the seemed may abstaining number of provisions. some of insignificant, it was no doubt a signal of the possible interpretational divergence ahead of the in has initiative. this respect Renteln human notably observed then emerging universal rights democratic West from "came for UDHR the drafts the and the that all considered eighteen 51 fact "(t)he in that there were no She English" that thus but two that all concluded were . dissenting votes should not be taken to mean that complete value consensus had been achieved.s52 One of the earliest indications of the need for a universal value consensus and thus a initiative human international to the then rights was given emerging multi-cultural approach in 1947 by the American Anthropological Association in its memorandum submitted to the UN Commission on Human Rights charged with the drafting of the UDHR. The Association
1993),UN Doc. A/Conf. 157/ASRM/8, PreambularParagraph2. 46See 1S`Paragraph under Challenges in the Bangkok NGO Declaration on Human Rights. Reproduced in (1993) 14 Human Rights Law Journal, p. 352.
47SeeCaseStudiesin Chapter 8 below. 48SeeParagraph8 of the Preambleof the UDHR.
49Afghanistan, Argentina, Australia, Belgium, Bolivia. Brazil, Belarus, Canada, Chile, China, Colombia, Costa Rica, Cuba, Czechoslovakia, Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, France, Greece, Guatemala, Haiti, Honduras, Iceland, India, Iran, Iraq, Lebanon, Liberia, Luxembourg, Mexico, Myanmar, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Poland, Russian Federation, Saudi Arabia, South Africa, Sweden, Syrian Arab Republic, Thailand, Turkey, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Venezuela, Yemen, Yugoslavia.
50On SaudiArabian reasonsseeChapter8 p. 262 below.
51Renteln, A. D., (1990) supra, note 44 above, p. 30; See also Tolley, H., The UN Commission on Human Rights, (1987) 20. 2 Renteln, A. D., ibid.
16
had stated,inter alia, that: "Because of the great numbers of societies that are in intimate contact in the modern world, and because of the diversity of their ways of life, the primary task confronting those who would draw up a Declaration on the Rights of Man is thus, in essence, to resolve the following problem: How can the proposed Declaration be applicable to all human beings, and not be a statement of rights conceived only in terms of the values prevalent in the countries of Western Europe and America?... the problem is complicated by the fact that the Declaration must be of world-wide applicability. It must embrace and recognize the validity of many different ways of life. It will not be if it lies Chinese, Indonesian, African, Indian, the to the the the on the convincing same plane as like documents of an earlier period. The rights of Man in the Twentieth Century cannot be circumscribed by the standards of any single culture, or be dictated by the aspirations of any single people. Such a document will lead to frustration, not realization of the personalities of vast numbers of human beings. "" (emphasis added)
The above observation was calling attention to universalism in human rights because it (i. Declaration. The "world-wide the the to of e. universal) applicability" specifically referred UN Commission seemed however to have concentrated more on the universality of human for identifying the that value a universal means of early stage and not necessarily on rights at is in in human i. It by Declaration the the rights. e. universalism rights guaranteed achieving the context of universalism (not universality) that many publicist, in retrospect, contend that impossible be it be to the UDHR to the reach same re-adopted, would perhaps were States fragmented Member in 180 today's than culture-conscious of world of more unanimity 5' UN. the It is discernible however that emphasising universalism by the UN Commission at that initiative. human have Rather, in 1947 the the universal rights whole could stalled early stage UDHR was drafted in very general terms to secure the support of all the States despite their different cultures. The seventh preambular paragraph of the Declaration however stated that "a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge. " But since the Declaration contained no ultimate interpretative organ, the interpretation of the rights declared was more or less left to the individual States, each interpreting the values within its cultural context. The controversy on universalism in human rights did not fully arise until human rights had established itself as a powerful catalyst in international relations championed strongly by Western nations, and Western scholarship consequently projecting human rights as a strictly western concept subject to 53See American Anthropological 539-543.
Association, "Statement on Human Rights",
(1947) 49 American Anthropologist, pp.
54Seee.g. An-Na'im, A. A., "Universality of Human Rights: An Islamic Perspective"in Ando, N., (ed.) Japan and
17
by interpretations. This counter arguments advocating a met was complete west-oriented began Thus the human international interpretation norms. rights of culturally relative human the universal within contending theories of universalism versus cultural relativism in has UN, the a sort of paradox. resulted which rights objective of
THE PARADOX
OF UNIVERSALISM
AND CULTURAL
RELATIVISM
be (or the is human the same) that must The theory of universalism same are rights that Advocates in assert both universalism strict of substance and application. everywhere international human rights are exclusively universal. This theory is mostly advocated by in human through a strict rights universalism present who scholars and nations western it They as an consider and relativism of cultural any claims reject western perspective. Western human scholars who to violations. theory rights rationalise advocated unacceptable that from developed norms western human argue also culture that western were rights argue 55 law. human international for be rights the model normative universal always should Advocates of this exclusive concept of universalism usually seek support for their argument in the language of international human rights instruments, which normally states that "every it is While that human trite "all to "everyone" being", rights. human entitled are or persons" the theory instruments human international of support language generally rights the of in that hardly State or adopting suggestion any supports practice universalism, present indicating Parties State instruments, human international an were non-western rights ratifying international interpretation of acceptance of a strict and exclusive western perspective or 56 human rights norms. One may observe in this regard that Art. 31(2) of the ICCPR, for instance, provided that in electing members of the Human Rights Committee "consideration to the distribution be and membership representation of to geographical shall equitable given legal State Parties. the forms different the of systems" the principal of civilization and of of (emphasis added). It is arguable that this recognises the need for an inclusive and multi57 Covenant. The interpretation theory of cultural in the the of civilisational approach by is thus non-western nations and scholars who contend that mostly advocated relativism International Law: Past, Presentand Future (1999) p.311 at 318-319. ssSeee.g. D'Amato, A. A., CollectedPapers,International Law Studies(1997) Vol. 2, pp. 139-40;and Mayer, E.A., "Current Muslim Thinking on Human Rights" in An-Naim, A. A., and Deng, F.M., (eds.) Human Rights in Africa, Cultural Perspectives(1990) p. 131 at 147-8. 56e.g. SeeCaseStudiesof Muslim Statesin Chapter 8 below. 57The sameprovision can be found in Art 8 of the International Convention on the Elimination of All Forms of Racial Discrimination (1965) on the election of the membersof CERD. Also Article 9 of the Statuteof the International Court of Justice(1945) provides for "the representationof the main forms of civilization and of the principal legal systemsof the
18
human rights are not exclusively rooted in western culture, but are inherent in human nature interpreted be human based Thus they without regard not claim, can rights, on morality. and to the cultural differences of peoples. Advocates of cultural relativism assert that "rights and i58 The in depend theory thus cultural contexts. on and rules about morality are encoded by to from the the to the every society set up values of need recognise philosophy emanates for in inherent tolerance of dignity the its life, the need and every culture, own guide 59 is Cultural differ from thus they though relativism one's own. may conventions historical, by political, economic, social, cultural and religious of combination a conditioned factors and not restricted only to indigenous cultural or traditional differences of people. A critical evaluation of both theories reveals that, on the one hand, the theory of cultural by human be is to to violations rights rationalise used abuse and may prone relativism different regimes. It admits of pluralistic inputs, which, if not properly managed, can debase for On hand, the human the the the efficacy of current values projected other rights. interpretation of international human rights law by advocates of strict universalism have been 60The present theory of universalism is criticised as purely western and not really universal. 61 That is the paradox, itself thus criticised as being culturally relative to western values. between the universalism and cultural relativism actually portrays a controversy whereby situation of cultural relativisms. To most of the former colonies, western values are essentially being used as the in law human international the for interpretation test the same rights of universal repugnancy 62 local laws. The in laws to Western eliminate periods and customs were used colonial way in human been theory has the to thus strict universalism of raised as whether often question dominance the "form is to strengthen of the serving of neocolonialism not another rights West. ". 63 The ideals of universalism in international human rights law need therefore to be advanced in a manner that escapes charges of cultural imperialism within non-western societies. Universalism
in international
human rights law demands the evolution
or
identification of a universal consensus in the interpretation of human rights principles. This
world" in the election of its judges.
S$See Steiner, H. J. and Alston, P, International Human Rights in Context, Law Politics Morals (2°d Ed., 2000) 366. p. 59See Herskovits, M., Man and His Works (1950) p. 76. 60See e.g. Mutua, M., "The Ideology of Human Rights", (1996) 36 Virginia Journal of International Law, p. 586 at 592593. 61ibid. 62See generally e.g. Obilade, O. A., The Nigerian Legal System (1979) and Park, A. E. W., The Sources of Nigerian Law (1963) for an analyses of the application of the Repugnancy principle in the Nigerian Legal System. See also Allot, A. N., New Essays in African Law (1970). b3See Higgins, R., "The Continuing Universality of the Universal Declaration" in Baehr, P., et at. (eds.) Innovation and Inspiration: Fifty Years of the Universal Declaration of Human Rights (1999) p. 17 at 19.
19
for calls a multicultural or cross-cultural approach to the interpretation and application of the international human rights principles in a manner that will not reduce its efficacy but lead to the realisation of an inclusive theory of universalism. The American Anthropological Association had argued in its earlier quoted comment to the Human Rights Commission that international human rights should "... not be circumscribed by the standards of any single culture, or be dictated by the aspirations of any single people. "64
An-Na'im
has also
reiterated that: "Any concept of human rights that is to be universally accepted and globally 65 demands between That equal respect and mutual comprehension rival cultures". enforced argument continues to be advanced today mostly by non-western nations. There is thus a need for an objective evaluation of what every civilisation can contribute to universalism in international human rights law. Presumptions of cultural inferiority justifications
must be avoided and
on cultural differences must be examined and critically evaluated within the
parameters of human dignity
with
a view of evolving
an inclusive universalism
in
international human rights law. Whatever definition or understanding we ascribe to human rights, the bottom line is the dignity. is in human There today's world perhaps no civilisation of or philosophy protection that would not subscribe to that notion. Thus it may only be difficult, but not impossible to in is for There that acceptable need sincere and conception respect. evolve a universally justificatory
cross-cultural evaluations of human dignity
with a view of evolving
an
international moral value which no repressive regime may find easy to circumvent in the business of State governance.
RELEVANCE
OF ISLAMIC LAW TO UNIVERSALISM INTERNATIONAL HUMAN RIGHTS LAW
IN
The relevance of Islamic law in the quest for an inclusive universalism that will ensure the full realisation of international human rights in the Muslim world is, in view of the number of Muslim States in the international legal order, quite obvious. This has often been practically demonstrated by references to Islamic law in the arguments and reports of Muslim States to UN charter and human rights treaty committees. The general relevance of Islamic law in international law is also demonstrated by the existence of a "Committee on Islamic Law and International Law" amongst the international committees of the International Law Association (ILA). Notably, the Committee for instance proposed in its report after the ILA 64See American Anthropological
Association, (1947) supra, note 53 above.
20
London Conference in July 2000, "to contribute to the advancement of International Law on asylum and refugees by incorporating some aspect of Islamic Law on asylum in International Law". 66 Mayer has however observed that there is a general indifference to the Islamic tradition within learned international human rights literature and that "(q)uestions of Islamic law are only occasionally mentioned in scholarly writing on international human rights - for the sake of comparison with international norms or to illustrate the problems of introducing international norms in areas of the developing world. i67 Thus while Islamic law is recognised introduction factor to the a relevant as
of international norms in Muslim
areas of the
developing world, legal scholarship on the subject has not been persuasive enough to achieve in international differences between law harmonisation Islamic the scope and of effective human rights law. It is noteworthy however that the ILA adopted Resolution No. 6/2000 after the London Conference observing that "... aspects of Islamic Law are protective of human rights" and its its "to Committee Islamic Law International Law continue work on the on and requested development law by further Law Islamic International to the of undertaking contribution of studies, with a view of reporting on that work to the 70`h conference to be held in New Delhi in 2002". 68 More than just establishing a religious and legal order, Islam is an institution
of
legitimacy in many States of the Muslim world. Many regimes in the Muslim world today law Islamic Any legitimacy traditions. through to their and an adherence portraying seek attempt to enforce international or universal norms within Muslim societies in oblivion of law Islamic and traditions thus creates tension and reactions against the secular established nature of the international regime no matter how humane or lofty such international norms may be. For example the Representative of Islamic Republic of Iran, Said Raja'i-Khorasani at the 65th meeting of the Third Committee
during the 39th Session of the UN General
Assembly on 7th December, 1984 had argued in defence of alleged violation of human rights by his country that the new political order in Iran was "in full accordance and harmony with the deepest moral and religious convictions of the people and therefore most representative of the traditional, cultural, moral and religious beliefs of Iranian society. It recognised no authority... apart from Islamic law... (therefore) conventions, declarations and resolutions or decisions of international organisations, which were contrary to Islam, had no validity in the 65See An-Na'im, A. A., "What Do We Mean By Universal? " (1994) Index on Censorship, September / October, 120. 66See the ILA Internet Website at http: //www. ila-hq. org/ [11/12/ 2000]. 67See Mayer, A. E., Islam and Human Rights, Traditions and Politics, (3`d Ed., 1999) p. 41. 68See note 66 above.
21
" 69
Islamic Republic of Iran.
Conversely, accommodation of Islamic law is also often seen in international human human liberties freedoms, and rights on rights circles as accommodating a constraint generally. The assumption is that it is impossible to realise human rights within an Islamic legal dispensation.. For example when one of the States in the Federal Republic of Nigeria its jurisdiction70 law full Islamic into law for Bill the within application of recently passed a fears that the both human the expressed country outside and within rights groups many human fundamental law Islamic rights and constrain would adversely application of 7' by human fears State. Similar jurisdiction freedoms within the the rights expressed were of bill Pakistan to in 1998 the amendment a constitutional proposed of government when groups 72 Such law Pakistan. its parliament seeking to make the Qur'an and Sunnah the supreme of democratisation have is the believed the to to of abortion also contributed apprehension it Islamic in that the 1992 in Algeria take through appeared when a military over, process Salvation Front (FIS) would emerge victorious in the overall elections. According to Bassam Tibi: "If the FIS were to come to power, the first measure it would have taken would have been to abolish the constitution and declare nizam al-islami (Islamic system of government 73 `a)". based on the shari While the political and legal philosophy of Islam may differ in certain respects from that discord it the does international with the a complete mean not necessarily order, secular of international human rights regime. Removing the traditional barriers of distrust and apathy has incompatibility. Mayer is diversity to that observed that: not synonymous would reveal "The Islamic heritage offers many philosophical concepts, humanistic values, and human in for that constructing rights principles. use are well adapted moral principles Such values and principles abound even in the premodern Islamic intellectual heritage"74
Judge Weeramantry formerly of the International Court of Justice also observed in his 69UN GeneralAssembly, 39th Sess.,Third Committee,65th Mtg, 7 December,1984,A/C. 3/39/SR.65. 70SeeShari'a Court of Appeal Law of Zamfara Stateof the FederalRepublic of Nigeria; Zamfara Stateof Nigeria Law No.6 of 81hOctober, 1999. 71Similar fears were raised in 1979and 1989during the debateson provisions for a SharI'ah Court Appeal in the of Nigerian Constitution. Seegenerally Basri, G., Nigeria and Shari 'ah: Aspirations and Apprehensions,(1994). 72Constitution (15`x'Amendment) Act, 1998. The Bill was passed by the National Assembly on 9 October 1998. But the Senate had not voted on it before it was suspended by the Musharraf regime that took power in October 1999. However, there is an Enforcement of SharI'ah Act of 1991 already in force, Article 3 (1) of which provides that; "The Shari'ah, that is to say the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, shall be the supreme law of Pakistan. " 73Tibi, B., "Islamic Law/Shari'a and Human Rights: International Law and International Relations", in Lindholm, T., and Vogt, K., (eds.) Islamic Law Reform and Human Rights: Challenges and Rejoinders, (1993) p. 75 at 76. 74See Mayer, A. E., (1999) supra, note 67 above, p. 43.
22
penetrative work titled Justice Without Frontiers, Furthering Human Rights, that although Locke, the founding father of Western human rights, never attended most of his lectures as a lectures Professor Pococke, the Oxford, "he the of only assiduously attended at student have judge: "Those learned According Arabic to the studies may well studies". professor of idea including Arabic theory the to of rights that no ruler could take away, political referred He that: law, the to the the concluded rulership". of conditional and notion ruler of subjection "When Locke proclaimed his theory of inalienable rights and conditional rulership, this was his from Arabic have had but he this West, to the of some glimmerings not could new 75 studies? The wide gap that still exists between the theory and reality of the universal protection is law human in international indicates human that not yet a rights universalism rights76 of fait accompli. The evolution of international human rights has therefore not reached the end is law international human the With its history that the aimed at rights cognisance yet. of it is humanity, being dignity human the the of well promotion of and enhancement of it, be law to the to Islamic than that contribute able should contradicting rather submitted in its ideals its to the especially observation, universal and also achievement of realisation of "from is is by What Muslim within expatiation an one writer, the required as observed world. by a Muslim intellectual who can engage in dialogue with the traditionally educated scholars 77 human law. international in jurisprudence" Islamic rights with manner a comparative of ,
75See Weeramantry, C. G., Justice Without Frontiers: Furthering Human Rights (1997) Vol. 1, pp. ] 39-140.
76See generally, Watson, J.S., Theory & Reality in the International Protection Human Rights (1999) for a critical of analysisof this.
" See Sachedina, A., "Review of Abdullahi Ahmed An-Na'im, Toward and Islamic Reformation: Civil Liberties, Human Rights and Internatipnal Law" (1993) 25 International Journal of Middle East Studies, p. 155-157.
23
CHAPTER
3
The Nature and Evolution of Islamic Law This chapter examines the nature and evolution of Islamic law to serve as background for the later arguments of this thesis in respect of Islamic law. A distinction is made between is law Islamic law the the also the of the sources and overall objective and methods of examined at the end. Traditionally,
Islamic
law
is not
stricto
senso monolithic.
Its jurisprudence
in differences does its interpretation produce of sources, which accommodates a pluralistic juristic opinions that can be quite significant in a comparative legal analysis. Afshari has diverse host is "Islamic law", "(w)hen to positions... comes of that a made reference argued into the picture". ' The complexity of Islamic law does not however make it indeterminable. The differences of the jurists and schools of Islamic jurisprudence represent "different 2 It diversity "a divine the within unity". will" and are considered as same manifestations of depicts recognition of the inescapable pluralism that exists within human society. Islam, as in in find "refuses by Breiner, to temptation the matters even uniformity, only unity observed 3 The appreciation of differences, Breiner further observed, is an "important principle law". of inherited law Roman from throughout different the law, Islamic of assumptions one quite of 4 There is in fact an Islamic jurisprudential maxim that says: "The blessing Europe". most of 5 is Law jurists' differences in lies (Muslim) the ultimately the the of opinion". community of is fact. is law It Islamic that to its exception not an and product of sources and methods,
Afshari, R., "An Essayon Islamic Cultural Relativism in the Discourseof Human Rights", (1994) 16 Human Rights Quarterly, p.235 at 271; Seealso Lawyers Committee on Human Rights, Islam and Justice (1997) p. 18 where another law Professor had expressedthat when people talk about SharI'ah or Islamic law he really doesnot know what is meant.
2 See Karnali, H. M., Principles of Islamic Jurisprudence, (1991) p. 169. 3 Breiner, B. "A Christian View of Human Rights in Islam" in Breiner, B. (ed. ) Two Papers on Shari'ah (1992) p. 3. 4 ibid. SThe maxim says: "Rahmah al-Ummah fi Ikhtildf al-A'immah ". This indicates that the jurists' differences of opinion in the interpretation of legal sources on certain matters offer a broad and equally legal scope from which the community may choose the most compassionate and beneficial interpretation for themselves. It was on the basis of this that the Islamic legal principle of "takhayyur" (eclectic choice) was evolved, which allows for unification or movement within the different schools of jurisprudence. A 15`hCentury Islamic jurist, Abü Abdullah al-Dimashgi, wrote a jurisprudential book titled in which he listed the legal consensus and dissension of the classical Islamic "Rahmah al-Ummah fi Ikhtiläfal-A'fmmah" jurists. Republished by Dar al-Kutub al-Ilmiyyah, Beirut, Lebanon (1995).
24
important therefore to distinguish between Shari `ah as the source from which the law is derived and Fiqh as the method by which the law is derived and applied. 6
THE NATURE
OF ISLAMIC
LAW 7
There is a general traditional misconception about Islamic law being wholly divine and immutable. This arises from the usual non-distinction between the sources and interpretation for is Shari'ah Fiqh between law. Distinguishing Islamic a proper very significant and of law, is Islamic to law. Although terms Islamic the as often referred either of understanding of they are not technically synonymous. Literally Shari'ah means "path to be followed"
or
"right path"8 while Fiqh means "understanding. "9 The former refers more to the sources legal Shari'ah law. In Islamic the latter to the the sense strict of, methods refers more while in Qur'an in law the the the the authentic to and as contained of revealed corpus refers 10 (PBUH). It differs in this sense from Fiqh Muhammad Prophet Traditions (Sunnah) of the because it (Sharä'ah) refers here to the primary sources of the law, which is textually Fiqh on the other hand refers to methods of the law, i. e. the understanding " The derived from the Shari'ah, which may change according to time and circumstances.
immutable.
distinction this thesis to the this are: arguments of with respect of significance
(i)
Sharl'ah as a source of Islamic law is divine in nature and thus immutable, while Fiqh, as the understanding, interpretation and application of the Shari 'ah, is a human product that may change according to time and circumstances; and
(ii)
Shari'ah broadly covers the moral, legal, social, and spiritual aspects of the Muslims' life, while Fiqh mostly covers the legal or juridical aspect of the Shari'ah as distinguished from the moral. 12
6 Seee.g. Karnali, M. H., "Law and Society: The Interplay of Revelation and Reasonin the Shariah" in Esposito,J.L., The Oxford History of Islam (1999) p. 107. 7 See
generally e.g. Karnali, M. H., Principles of Islamic Jurisprudence, (1991); Hallaq, W. B., A History of Islamic Legal Theories, (1997); Qadri, A. A., Islamic Jurisprudence in the Modern World (1986); Ramadan, S., Islamic Law: Its Scope and Equity, (1970); Philips, A. A. B., The Evolution ofFigh (1988) for English language expositions on the nature of Islamic law.
8Seee.g. Doi, A. R., Shari'ah: TheIslamic Law (1984) p.2.
9 In Q45: 18 the word Shar?'ah is used as "straight path" or "right way" - "Then We put you on a right way (Shari'ah) of the affairs, so follow it... " and the Prophet Muhammad used Fiqh in one of his sayings to mean "understanding"- "To whomsoever God wishes good, He gives the understanding (fiqh) of the faith ". Fiqh is also used in the Qur'an to mean understanding. See e.g. Q 9: 87. See also Qadri, A. A., (1986) supra, note 7 above, p. 15-17.
10The abbreviationPBUH which means'Peacebe Upon Him', will not be repeatedin writing after this first occurrencebut shall be implied as repeatedafter every occurrenceof the Prophet's namehereinafter. 11Seee.g. Ramadan,S., (1970) supra, note 7 above,p. 36 and Philips A. A. B., (1988) supra, note 7 above,pp.1-4.
12Note however as pointed out by Professor Karnali that "There is often... a relationship between strict compliance to a legal duty and the Islamic concept of moral excellence". See Karnali, M. H., Freedom of Expression in Islam, (Revised Ed. 1997) p. 27; and Karnali, M. H., (1999) supra, note 6 above, p. 107 at109.
25
Islamic law thus consists of two component parts: (i) immutable divine revelation termed Shari `ah and (ii) human interpretation of the Sharä `ah termed Fiqh. 'Abd al 'At! has is `ah "confusion the term that used uncritically arises when sharI correctly observed
to
designate not only the divine law in its pure principal form, but also its human subsidiary 13 We including figh". will now examine the characteristics of these two component sciences parts of Islamic law.
SOURCES OF ISLAMIC
14 LAW
Shari `ah
The Qur'an and the Sunnah are the formal sources of Islamic law. They contain the is believed by is Muslims Qur'an law. The to the the and source principal revealed of corpus be the exact words of God revealed to Prophet Muhammad over a period of approximately 15 humanity. It is not strictly a legal or constitutional code. It for 23 years the guidance of its 6666 itself Out book approximately of of guidance16. as a more specifically addresses jurists life, Muslim both the temporal estimate of spiritual and aspects verses, which cover between 350 to 500 verses as containing legal elements, " and according to Coulson: "No in deal legal the the topics than strict sense of with eighty verses approximately more 18 This conceivably anticipates the application of some juridical principles to extend term". the few strictly legal verses to cover the dynamic and expansive nature of human life. Those for legal basis Islamic largely be that every also constitute as moral rules viewed may verses 19 principle. The words of the Qur'an are, to Muslims, immutable and from it "springs the very conception of legality"20 in Islam. The Qur'an
forms the foundation or the basic norm of
Islamic law, the grundnorm, as Kelsen will call it in his pure theory of law, or the "ultimate
13`Abd al At!, H., The Family Structure in Islam (1977) p. 14.
14The approachadoptedhere deviatesfrom the traditional classification of the Qur'an, Sunnah,Ijmä' and Qiyäs as main sourcesof Islamic law, a classification which Ramadanhas rightly observed,"is by no meansa decisive or authoritative one". SeeRamadan(1970) supra, note 7 above,p.33. The approachhere distinguishesthe sourcesof the law (i. e. Qur'an and Sunnah)from the methodsof the law (i. e. Ijmä' Qiyäs, Ijtihdd, e.t.c) to avoid the confusion of the traditional misconceptionof the whole of Islamic law asbeing divine and immutable. 15See e.g. Q26: 192 which says: "Verily this is a Revelation from the Lord of the Worlds" and Q45: 2 which says: "The revelation of The Book is from God, The Exalted in Power, Full of Wisdom ".
16Seee.g. Q2:2 which says: "This is the Book; In it is guidance sure, without doubt, to those whofear God " SeeKarnali, M. H. (1991) supra, note 7 abovep. 19-20and p.41 n. 19. 8 Coulson, N. J., A History of Islamic Law (1964) p. 12.
19Although law and morals are not fully mergedin Islamic law, they are also not strictly separatedas understoodin the theory of positivism in Westernlegal philosophy. SeeKarnali, M. H., (1997) supra, note 12 above,p. 27. 20See Ramadan, S., (1970) supra, note 7 above, pp.42-43.
26
21 by Mayer, law. This in Hart's why as observed explains, concept of rule of recognition" "many works on the topic of Islam and human rights are burdened with long quotations from" especially the Qur'an. 22 While legal texts are very significant in every legal system, their interpretation is what actually constitutes law at every point in time. The text of the Qur'an is divine, but its application has been through human interpretation since revelation. in best its the being Muhammad the obviously The Prophet revelation, was receiver of Prophet in his dual he did lifetime, during his Qur'an interpret a role as the so and position to basis initial formed Qur'an the what of the judge. His of verses of some elucidation and a Traditions. his Sunnah known be to or as came deeds lifetime tacit Prophet's law the and Sunnah sayings, The of consists as a source of from developed Sunnah the The both issues, temporal. different and spiritual approvals on details to Qur'anic by Prophet, some of for the supply verses, of some elucidation, need life instructions Qur'an not expressly of the aspects other on some and of provisions general Islamic Shäfi'i the Imam Thus the of school Qur'anic by texts. of eponym al-Shäfi`i, covered jurisprudence23 had stated that: "the Sunnah of the Prophet is of three types: first is the Sunnah which prescribes the like of what God has revealed in His Book; next is the Sunnah which explains the Sunnah last is God; the Qur'an the the and will of and clarifies general principles of found be in has God Messenger can of ruled on matters on which nothing where the the Book of God.s24
25 itself. The Qur'an Qur'an in The role of the Sunnahas a sourceof law is supported the lifetime. Ramadan from Prophet's law the formed Sunnah the thus only sources of and the has therefore observed that "the structure of Islamic Law - the Shari'ah - was completed during the lifetime of the Prophet, in the Qur'an and the Sunnah."26 An illustrative evidence from Prophet law the being Islamic the time Sunnah Qur'an of the sources of of and Muhammad is the well known Tradition in which the Prophet was reported to have asked one latter judge deployed he ibn. Jabal, the to Mu'ädh his as a when of companions named Yemen, as to what would be his source of law in deciding cases. Mu'adh replied: "I will 21See Kelsen, H., Pure Theory of Law (1967) and Hart, H. L. A., The Concept of Law, (2nd Ed. 1994). As illustrated by Nyazee, the basic Islamic attitude to law is: "I am ready to obey such and such law as it has been communicated to me by a qualified jurist. I follow the opinion of the jurist as it is in conformity with the sources of Islamic law. I obey a law based on the sources as they are the sources revealed to Muhammad. I obey Muhammad for he is a Messenger of (God) and I believe in (God). " See Nyazee, I. A. K., Theories of Islamic Law (n. d. ) 38.
22SeeMayer, A. E., "Current Muslim Thinking on Human Rights" in An-Na'im, A. A. and Deng, F.M., (eds.) Human Rights In Africa: Cultural Perspectives(1990), p. 133 at 134-135. 23The development of the Schools of Islamic Jurisprudence are explained below. See p. 29 below.
24Shäfi`i, M., al-Risälah (1983) pp.52-53 English translation cited in Kamali, H.M., (1991) supra, note 7 above,p.63. 25Seee.g. Q3:31 and Q33:21.
27
judge with what is in the book of God (Qur'an)". The Prophet then asked "And if you do not find a clue in the book of God? ", Mu'ädh
Sunnah "Then the of the with answered:
Messenger of God". The Prophet asked again: "And if you do not find a clue in that?", Mu'ädh replied: "I will exercise my own legal reasoning. "27 The Prophet was reported as being perfectly satisfied with these answers by Mu'ädh, which signified an approval by the Prophet. The general rule on the application of the Qur'an and Sunnah as main sources of Islamic law is that in case of any irresolvable conflict between a verse of the Qur'an and a 28 in law. its indubitable Islamic because former Sunnah, the authenticity of prevails, reported While
Muslims
believe generally that the Sunnah also has elements of divine
inspiration, they appreciate that not every reported Sunnah is authentic. The political differences between the fourth Caliph, Ali and Mu'äwiyah in the middle of the first century led factions Muslims, led to the the Islam, to the emergence of among of emergence which of 29 A conscientious interpretations Prophet. distorted fabricated statements and attributed to the developed Sunnah thus the technique which eventually was of authenticating and critical Sunnah books in the the of of the six recognised and authentic emergence of culminated 30 In applying a Sunnah the two main questions Sunni school in the third century of Islam. that need be answered are whether the Sunnah is authentic and if so whether it is obligatory. The first question is basically a question of fact that is usually considered on the basis of the for laid down it in the to verification of criteria with support accordance adduced evidence Prophetic Traditions. The second question is a question of law depending, inter alia, on the Tradition. language the of and context
METHODS
OF ISLAMIC
LAW
Fiqh The passage of time and the expansion of Islam after the demise of the Prophet brought by Qur'anic directly the texts or the Prophetic that not covered were many new cases 26Ramadan,S., (1970) supra, note 7 above,p. 36. 27Seee.g. Abü Däwiid, SunanAbü Ddwdd, Trans.A. Hasan,(1984), Vol. p. 1019,Hadith No.3585. Mu'ädh is reported in this Tradition to have usedthe words "ajtahidu rd'iy" meaning "I will exert my own reasoning". The noun "Utihdd " meaningexertion was later adoptedto indicate "legal reasoning" as a legal method of Islamic law. 28See Kamali, M. H., (1991) supra, note 7 above, p. 59. 29ibid. pp. 65-68. 30The six authentic Sunni books of the collections of the Prophets Traditions are those by al-Bukhäri (d. 870AD), Muslim (d. 875AD), Abü Däwüd (d. 888AD), al-Tirmidhi (d. 892AD), al-Nasä'i (d. 915AD) and Ibn Mäjah (d. 886AD). Muslims are divided into the two main groups of Sunni and ShI'ah. The Sunni are the majority while the Shf'ah constitute about 10% of the world Muslim population. The ShI'ah group developed from a schism among the Muslims during the Caliphate of Ali. The Sh1'ah also have their own different collections of the Prophet's Traditions apart from the six Sunni books mentioned above.
28
Traditions. On the authority, inter alia, of the Tradition of Mu'ädh ibn. Jabal quoted above, the concept of Utihäd (legal reasoning) was developed as a method of Islamic law and from it Qiyäs (legal (juristic Ijmä' legal the analogy) as well as and consensus) of methods emerged legal doctrines such as Istihsdn (juristic preference), Istisläh or Maslahah (public interest or formal (Necessity) (Custom), Darürah the `Urf t. through sources could c., which e. welfare), be extended to cover new developments of life. These methods, which are usually considered indication human law, Islamic an of the reasoning, were products of as secondary sources of from Islam. in legal Islamic human the the of earliest period process reasoning of recognition The methods were applied to new cases not expressly covered by Qur'anic texts or the Sunnah, and also facilitated the adequate interpretation and application of the sources to suit the different circumstances of human life. Thus while the revealed sources of Islamic law (i. e. Shari `ah) was completed with the demise of the Prophet, the evolved methods of Islamic law were to be the vehicle by which the jurists would transport the Shari `ah into the future. In the words of Qadri, "the jurists are emphatic in saying that though God has given us a intend it; did be He brains to He to understood and not understand also gave us revelation helps "31 The to prevent and prolonged study careful and prolonged study. without careful misapplication of the methods.
With the expansion of Islam and its establishment within different cultures outside Arabia, about 500 schools of legal reasoning developed in the early years but most of them 32 Islam. Four Sunni disappeared and others merged by the beginning of the third century of School They Hanafi the jurisprudence times. the to are present survived up schools of (prevails in Turkey, Syria, Lebanon, Jordan, India, Pakistan, Afghanistan, Iraq, and Libya), the Mäliki School (prevails in North Africa, West Africa and Kuwait), the Shdfi'1 School (prevails in Southern Egypt, Southern Arabia, East Africa, Indonesia and Malaysia) and the Hanball School (prevails in Saudi Arabia and Qatar). Other schools of jurisprudence also `Ashari (prevails in being Ithnä Iran from Shi'ah. The the the and major ones within emerged Sorthern Iraq), the Zaydi (followed in Yemen), the Ismä'ill (followed in India) and the Ibddi (followed in Oman and parts of North Africa). 33 All the schools of Islamic jurisprudence generally recognise the Qur'an and Sunnah as
31Qadri, A. A., (1986) supra, note 7 above, p. 199. 32See note 30 above. 33See e.g. Makdisi, G., The Rise of Colleges: Institutions of Learning in Islam and the West (1981) p. 2; and Karnali, M. H. (1999) supra, note 6 above. pp. 112-114. Note also that there were other schools of rational theology that were not strictly jurisprudential schools, but their arguments and views sometimes influenced and were reflected in the jurisprudence of the jurists. Some of the schools of rational theology were the Ash'arl, Mu'tazilah and Mäturidi schools which will be referred to below. See Chapter 4, pp. 44-46s below.
29
the primary sources of Islamic law. The differences of opinion on particular matters result from their different interpretations of some Qur'anic verses and Prophetic Traditions. The different views of jurists on certain matters reflected their sensitivity to the different cultures 34 different different flourished. To control the of the provinces within which the schools divergence of interpretations of the sources, the jurisprudence of these schools on both the aspects of worship (ibädät) and inter-human relations (mu'ämalät) compiled in form of legal treatises became the material sources of Islamic law. By the tenth century it was thought that the established schools of jurisprudence had fully exhausted all the possible questions of law fully formed. law The utilisation of Islamic that the necessary material sources of was and the doctrine of independent legal reasoning (ijtihäd) consequently diminished and this led, by the thirteenth century, to what was termed as "closing the gate of legal reasoning (ijtihäd) and opening that of legal conformism (taglid)". Islamic law thus became restricted largely to the application of the legal findings of the jurists as recorded in the treatises of the 35 jurisprudence back dating Century. Muslims thus became 10`h to the established schools of follow jurisprudence but to to the the of conform or rulings any one of schools of restricted independent legal to allowed exercise reasoning on any matter. This brought a not generally halt to the dynamism that had been injected into Islamic law from its inception, and that, in 36 "reduced immobility". Iqbal, Law Islam the to the words of a state of practically of Although many contemporary scholars have challenged the notion of the closing of the gate 37the legal jurists following (taglld) ijtihäd, the the conformism rulings of of of the very of jurisprudence (flqh) Islam day. The to this continues of of the established period early in found their treatises dating from the 10`hCentury are today held as the corpus of schools Islamic law and erroneously portrayed as the immutable Shari'ah. In respect to that Ramadan has rightly observed that: "the invariable basic rules of Islamic Law are only those prescribed in the Shari `ah (Qur'an and Sunnah), which are few and limited. Whereas all juridical works during more than thirteen centuries are very rich and indispensable, they must always be subordinated to the Shari `ah and open to reconsideration... ""
34See generally Daura, A., "A Brief Account of the Development of the Four Sunni Schools of Law and Some Recent Developments" (1968) 2 Journal of Islamic and Comparative Law, 1. 's See e.g. Karnali, M. H. "Law and Society" supra, note 6 above, at p. 114-115. 36Igbal, M., The Reconstruction of Religious Thought in Islam (1951) p. 148.
37Seee.g. Hallaq, W., "Was the Gate of Ijtihäd Closed?" in Hallaq, W., (ed.) Law and Legal Theory in Classical and Medieval Islam (1995) pp.3-41. 38Ramadan, S., (1970) supra, note 7 above, p. 36.
30
SPIRITUAL
AND TEMPORAL
ASPECTS OF ISLAMIC
LAW
As already observed above, the provisions of the Shari `ah broadly covers all aspect of human life. But through the methods of Islamic law the jurists have categorised Islamic law into two broad spheres. The first sphere embodies spiritual laws regulating religious observance and acts of worship. This is generally referred to as ibädät and concerns the direct relationship between an individual
and God. The second sphere embodies temporal
laws regulating inter-human relations and the temporal affairs of this world. This is generally referred to as mu `ämalät and generally promotes the realisation of the common good (ma `riJ) of humanity.
While the jurisprudence on the spiritual aspects is considered to be
fully settled and unchanging, the same is not true of the temporal aspects. It is in the sphere of temporal laws that the arrest in the dynamism of Islamic jurisprudence is greatly felt. The traditional jurisprudence (fiqh) of the established schools on many aspects of inter-human relations have been overtaken by the dynamic nature of human life and thus created a wide lacuna in Islamic legal and political judgement. The need to rejuvenate the methods of Islamic law to generate a more encompassing and jurisprudence became from to the nineteenth meet contemporary challenges evident realistic intimate interaction between East West. That the the the and urge continues with century today. The advancements and developments of modem life have affected inter-human in from Islamic law to ways which many needs address contemporary perspectives. relations The emergence of international human rights law is one such development.
Due to the
erroneous impression that the traditional opinions of the established schools of Islamic jurisprudence were immutable, Muslims were hesitant in formally accepting the need for a in legal law. Islamic Islamic the methods of scholarship aiming at a formal, re-appraisal adequate and cohesive re-appraisal of the methodology of Islamic law in the light of has been last the challenges going on since century with general contributions contemporary from many Muslim thinkers and intellectuals. 39Nevertheless, the stagnation of the thirteenth century continues to eclipse the great legacy of the earliest Islamic jurists that developed Islamic law into a most dynamic legal system from which even the West was a borrower in 40 the middle ages
"See Karnali, M. H., "Law and Society" supra, note 6 above, at p. 116-118. 40See e.g. Makdisi, G., (1981) supra, note 33 above, pp. 290-91.
31
THE SCOPE AND PURPOSE OF ISLAMIC
LAW
Today, Islamic law continues to be formally applied in most parts of the Muslim world as we had it interpreted by the classical Sunni schools of Islamic jurisprudence with regards to the Sunni Muslims and the classical Shi'ah schools with regards to Shi'ah Muslims. A static and immoderate application of those traditional interpretations of the Shari `ah can however constrain the scope of Islamic law for present times. Research shows that the earliest Islamic jurists had utilised the methods of Islamic law within the scope of the Shari `ah in an evolutionary
and constructive manner that prevented any unwarranted
human living during Such their times. evolutionary and constructive upon circumscription application is more relevant today than before. Cognisance of the object and purpose of the Shari `ah (magäsid al-shari'ah),
identified has been as promotion of welfare and which
(maslahah) benevolent harm the ensures realisation of proper and of also scope prevention '41 of Islamic law. In his analysis of the scope and equity of Islamic law, Ramadan has identified six important characteristics of Islamic law deductible from a thorough study of the Qur'an, the Sunnah and the works of some classical Islamic jurists. They are as follows: 1. The formal sources of Islamic law, i. e. Qur'an and Sunnah "are basically inclined towards establishing general rules without indulging in much detail". This makes room for a wider application of the legal sources through the legal methods for the best benefit of humanity. 2.
Qur'anic "texts were directly meant to deal with actual events (and) Presupposition was basically excluded from" the legislative philosophy of Islamic law. This characteristic, Ramadan observes, is a method of realism which "is apt to minimize the definite limitations imposed on human dealings", which in essence makes things easier for humanity.
3.
"As a rule, everything that is not prohibited is permissible. " In explaining this rule Ramadan rightly observed that: "Islamic Law was not meant to paralyze people so that they might not move unless allowed to. Man on the contrary, is repeatedly called upon by the Qur'an to consider the whole universe as a Divine grace meant for him, and to exhaust all his means of wisdom and energy to get the best out of it. "
4.
"Even in the field of prohibition, the Qur'an sometimes used a method which could gradually meet a growing readiness in the society where the revealed enjoinments were to be implemented. " This is the so-called principle of gradualism (tadrý) by which legislation was gradually upgraded in view of societal circumstances. Thus social circumstances are not overlooked in the development of the law.
41See e.g. al-Shätibi, A. I., al-Muwäfagät (Arabic) (1997), Vol. 2; and Masud, M. K., Shatibi's Philosophy of Islamic law (1995) p. 151.
32
5.
that the Qur'an and the Sunnah have prohibited becomes permissible whenever a pressing necessity arises". This is based on the doctrine of necessity (darürah) by which all Islamic jurists generally agree that "necessity renders the prohibited permissible". "All
6. "The door is wide-open to the adoption of anything of utility, of whatever origin, so long as it doesnot go againstthe texts of the Qur'an and the Sunnah"42
Apart from the many Qur'anic verses and Prophetic Traditions cited in support of the above characteristics of Islamic law, the following Qur'anic verse succinctly summarises the benevolent nature of Islamic law. "... For he commands them what is just and forbids them what is evil; he allows them as lawful what is good and prohibits them from what is bad. He releases them from their heavy burdens and from the yokes that are upon them" 43
Thus the overall objective and purpose of the Shari'ah, which must always be kept in mind in both its interpretation and application, is the promotion of welfare and prevention of harm.
PROMOTION
OF WELFARE
AND PREVENTION
OF HARM
(MASLAHAH)
Among the many doctrines and principles establishedby the founding jurists for an intelligible application of Islamic law, maslahah is considered as the most viable means of
bringing the ideals of Islam closer to realisation for all time. Kamali has observedthat: "The doctrine of maslahah is broad enough to encompass within its fold a variety of objectives, both idealist and pragmatic, to nurture the standards of good government, and to help develop the much needed public confidence in the authority of statutory legislation in Muslim societies. The doctrine of maslahah can strike balance between the highly idealistic levels of expectation from the government on the part of the public and the efforts of the latter to identify more meaningfully with Islam". '
The doctrine was originally introduced by Imam Malik, the eponym of the Mäliki school of Islamic jurisprudence, and later developed by jurists such as al-Gazäli and al-Tüfi of the Shäfi `i and Hanball schools respectively. The fourteenth century Maliki jurist, Abü Ishäq alShätibi further developed the concept as a "basis of rationality and extendibility of Islamic law to changing circumstances (and also) as a fundamental principle for the universality and 42SeeRamadan,S., (1970) supra, note 7 above,pp.64-73. Seealso a]-Shdtibl, A. I., (1997) ibid.; and Ibn al-Qayyim, I'läm al-Muwaqqi in An Rabb al- Alamin (Arabic (1996)Vol. 1 pp.71-72. 43Q7: 157.
33
45 by law is doctrine Islamic law". It today Islamic acknowledged of an expedient certainty of Islamic legalists as containing "the seeds of the future of the Shari `ah and its viability as a living force in society. "46 Against the background of the nature and evolution of Islamic law in is doctrine this thesis as a veritable thus the advocated of maslahah established above, for the realisation of international human rights within the dispensation of Islamic law. 47 We will rely on the doctrine within the ample scope of the
Islamic
legal principle
Shari `ah in deriving legal benefits and averting hardship to the human person, as endorsed by the Quranic verse that: "He (God) has not imposed any hardships upon you (humans) in 48 religion".
°° Karnali, M. H., "Have We Neglected the Shari'ah-Law Doctrine of Maslahah? " (1988) 27 Islamic Studies, No. 4, p. 287288.
45SeeMasud,M. K., (1995) supra, note 41 above,p. viii. 46Kamali, M. H., (1988) supra, note 44 above,at p.288. 47For further elaborationon the principle of MaslahahSeee.g. Karnali. M. H., (1991) supra, note 7 abovepp. 267-282; and al-Shätibi, A. I., (1997) supra, note 41 above; Masud, M. K., (1995) supra, note 41 above,pp. 127-164. 49Q22:78.
34
CHAPTER
4
The Idea of Human Rights within Islamic Law Against the background established in the last two chapters, this chapter will,
in
human first thesis, the this the concept of rights examine whether of proposition pursuance of law. The from Islamic be the themes chapter will examine and of within established can into the the traditional to sources, methods and subject and research arguments on respond jurisprudence of Islamic law to identify the concept of human rights in relation to the concept law. human international rights under
BREAKING
Traditionally,
TRADITIONAL
a number of difficulties
BARRIERS
confront the discourse of international human
influence hand is legal On domineering Islamic from the one of the perspective. an rights Western perspective of human rights, which creates a tendency of always using Western human is in discourse. human It that argued rights often every rights values as a yardstick in Western developed Western "principles thus that culture", norms were principles are international for human be the the model content of universal normative should always ' There however continues to be opposing arguments against that assertion.2 While it is rights. true that the impetus for the formulation of international human rights standards originated from the West, the same cannot be said of the whole concept of human rights, which is 3 Related to that is the image different human negative of civilisations. perceivable within Islam in the West. Often, some of the punishments prescribed in Islamic law and the political in Muslim by human the inter today many of world situation parts are, rights alia, cited cum Western analysts as evidence of Islamic brutality and lack of provision or respect for human
1See
e.g. Mayer, A. E., "Current Muslim Thinking on Human Rights" in An-Na'im, A. A. and Deng, F. M., (eds.) Human Rights In Africa, Cultural Perspectives (1990) p. 131 at 147-8. 2 See e.g. Said, M. E., "Islam and Human Rights" (1997) Rowaq Arabi, January ed. p. 11 at 13; Manglapus, R., "Human Rights are not a Western Discovery" (1978) 4 Worldview, pp. 4-6; and Kushalani, Y., "Human Rights in Asia and Africa" (1983) 4 Human Rights Law Journal, No. 4, p. 404. See e.g. Kushalani, Y., (1983) ibid.; and Smith, J., (ed. ) Human Rights: Chinese and Dutch Perspectives (1996) for discussions on different perceptions of the concept of human rights.
35
4 in law. This has created what has been termed "Islamophobias5 in the West, Islamic rights which adversely affects the view about human rights in Islam generally. is there realm also what Strawson calls the "orientalist problematique"
In the academic
by which "Islamic
law is represented within Anglo-American scholarship as an essentially defective legal 67 international law. to systems, especially with regards On the other hand, is the obstacle of static hard-line interpretations of the Shari ah and jurisprudence inter-human Islamic traditional on some aspects application of of non-relative both by law Shari `ah Islamic Muslim sometimes advanced or are vaguely some relations. countries as excuse for their poor human rights records without any elaboration on the law Islamic of on the matter. precise position Due to the above difficulties, the concept of human rights under Islamic law has often been discussed from either a reproachful or a defensive angle, depending on the leanings of the discussant. Piscatori has frowned at the defensive approach of most Muslim writers in the international human rights discourse. 8 We need to determine however, whether the defensiveness is merely an apology in the face of genuine challenges posed by international human rights to Islamic law, or are genuine defences against criticisms of Islamic law for human rights situations in Muslim
countries not necessarily justifiable
Shari `ah. On one hand, it is undeniable that Western initiatives
even under the
and modern challenges,
have forced international include human the regime, contemporary Muslim rights which thinkers and intellectuals
of some traditional Islamic jurisprudential views, especially in the area of international law and relations. 9 On the other to strongly propose a review
hand, there have also been general erroneous reproaches against Islamic law for the
4 See Bannerman, P., Islam in Perspective, A Guide to Islamic Society, Politics and Law. (1988) p. 25. See also Robertson, B. A., "Islam and Europe: An Enigma or a Myth? " (1994) 48 Middle East Journal, No. 2, pp. 288-307. 5 See e.g. Tash, A. Q., "Islamophobia in the West" (1996) Washington Report on Middle East Affairs, November/December ed. p. 28; and "Islamophobia" in BULLETIN, University of Sussex Newsletter, 7th November, 1997,16. Available Online: html [12/03/2001]. httR: //www. sussex.ac.uk/press office/bulletin/07nov97/iteml2. 6 See generally Strawson, J., "Encountering Islamic Law", University of East London Law Department Research Publications Series, No. 1., p. 1. 7 Strawson for instance refers to Schacht's very well known work, Introduction to Islamic Law, which omits the discussion of Islamic international law because of what the learned professor described as "its essentially theoretical and fictitious character and the intimate connection of the relevant institutions with the history of Islamic states... " (See Schacht, J., Introduction to Islamic Law (1964) p. 112). It is difficult to imagine how international law can stand without an "intimate connection of the relevant institutions" of the State. As to the excuse of "its essentially theoretical and fictitious character", this was in 1964 when, even in western discourses, public international law had its own cynics as to whether it was really law or not, but this never ostracised public international law from the law books. Such approaches to Islamic law were some of the barriers, inter alia, which shut out Islamic law from contemporary international law discourses. See also generally Said, E. W., Orientalism, Western Conceptions ofthe Orient (1978). 8 See Piscatori, J.P., "Human Rights in Islamic Political Culture" in Thompson, K, (ed. ) The Moral Imperatives of Human Rights: A World Survey (1980) p. 139 at 152-162; See also Manzoor, P., "Humanity Rights as Human Duties" Inquiry, July 1987, p. 34 at 37-38. 9 See e.g. AbuSulayman, A. A., Towards an Islamic Theory of international Relations: New Directions for Islamic Methodology and Thought (1993).
36
in Muslim that are countries of some governments actions sometimes appalling attitudes or in in held Islam Human Rights Seminar At `ah. Shari justifiable the on end of a under the not Kuwait in 1980, jointly organised by the International Commission of Jurists, the University inter that: Arab Lawyers, Union the Kuwait was the alia, conclusion, of and of "It is unfair to judge Islamic law (Shari'a) by the political systems which prevailed in by be judged history. It the Islamic to general principles ought of various periods Islamic its Regrettably from derived contemporary enough, sources... which are Islam. in true be the to of principles aspects with many conform said practices cannot Further, it is wrong to abuse Islam by seeking to justify certain political systems in "° law. Islamic the face of obvious contradictions between those systems and
While the theoretic arguments concerning the conceptual foundations of human rights is human international is fact today indisputable that difficult be not a the rights to settle, may being dignity is the It that well and concerns a universal affair prerogative of a single nation. is in Chapter there to two, being. However, human emerge yet analysed as earlier of every " human international in "universal rights. universalism" a what we may call "provincialism described been has as now
masquerading as universalism".
What exists 12 While the
flagrant abuse of human rights in Muslim States under the pretext of cultural differences is in Muslim influence the a peaceful cothe achieving world of role and unacceptable, States Muslim does to international the question a permit community existence within little has (generally) law "within Islamic enjoys value and normative no which universalism 13 An exception to the general non-consideration of Islamic law principles and prestige". in Convention is found law human the international development in only the rights of values CRC Article 20(3) in (CRC) 1989. the Child Rights the makes a specific of the adopted of on from Somalia Palestine, Apart law". "kafalah Islamic all and to the of of principle reference 14 best human Since CRC. have the Muslim States are achieved through the rights ratified domestic law of States, recognition of relevant Islamic law principles in that regard will in States Muslim international human that apply the objectives rights of realisation enhance Islamic law fully or partly as State law. As will be shown, there is need for the Muslim world to also acknowledge change as a Shari 'ah be in law. ingredient The the must positively utilised to of adaptability necessary 10See International Commission of Jurisits, Human Rights in Islam: Report of a Seminar held in Kuwait in December 1980 (1982) p. 7.
Seep. 15 above.
12See Strawson, J., supra, note 6 above, p. 2 and also Mutua, M., "The Ideology of Human Rights" (1996) Virginia Journal of International Law, p. 589, at 592-3. 13See Mayer, A. E., Islam and Human Rights, Tradition and Politics, (3`d Ed. 1999) p. 41.
14The CRC asat 1 March 2001 has 191 ratifications. SeeUN Human Rights Treaty Website at:
37
15 heritage, be Muslims While in Muslim true to their human the must world. rights enhance the ideals of international human rights can shed new light on their interpretation of the Shari `ah, their international relations and self-awareness within legal limits of Islamic law.
ISLAMIC
RESPONSES IN THE INTERNATIONAL
HUMAN
RIGHTS DISCOURSE
Halliday has identified at least four classes of Islamic responses to the international human rights debate. The first is that Islam is compatible with international human rights. The second is that human rights can only be fully realised under Islamic law. The third is that be is imperialist human that international rejected, and must an agenda the rights objective 16 is fifth international human There incompatible is is Islam fourth that a rights. with the international human is by Halliday, the that rights which noteworthy response not mentioned 17 Viewed these hidden has responses are most of critically, agenda. anti-religious a objective Muslim reactions to what is often described as the double standards of countries at the helm human The human the international of entrapment responses reflect rights promotion. of disagreements humanitarianism international than between on actual rather and politics rights the concept of human rights in Islamic law. We will now evaluate these responses within the law. Islamic perimeters of The view that Islam is compatible with human rights is the most sustainable within the is by law. This the Islamic western reading or apologetically vaguely not merely of principles law Islamic into The Islamic human methods of and sources rights principles. notion of human that resonate with welfare and of good government principles common contain human life for justice, ideals. human Respect international and of protection rights modern dignity, are central principles inherent in the Shari `ah which no differences of opinion can below, be Shari `ah, to the They the the which as will shown overall purpose of are exclude. Qur'an refers that: "God commandsjustice, the doing of good, and liberality to kith and kin, and He forbids all shameful deeds, and injustice and rebellion: He instructs you, that you 18 may receive admonition".
htm [1/3/2001]. http://www. unhchr.ch/hti-nl/menu3/b/k2crc.
15See Yamani, A. Z., "The Eternal Shari'a" (1979) 12 New York University Journal of International Law and Politics, p. 205. 16Halliday, F., "Relativism and Universalism in Human Rights: The Case of the Islamic Middle East" in Beetham, D., (ed. ) Politics and Human Rights (1995) p. 152 atl54-55. 17See late leader Human Rights" Index Censorship, (quoted E., "Islam 5 October, No. 12, Mortimer, 1983, the and on p. e.g. of Islamic Republic of Iran, Imam Ayatollah Khomeini observe that: "What they call human rights is nothing but a collection of corrupt rules worked out by Zionists to destroy all true religions").
38
The view that human rights can only be fully realised under Islamic law is exclusionist Western be the the perspective to exclusive egoism of criticised same and will culpable of human rights. Islam is not egocentric with respect to temporal matters but rather encourages 19 humanity. Islam for (ta'äwun) the the good of of common attainment co-operation Prophet A Tradition Muhammad interaction the of of perception. and sharing encourages in (a far China, knowledge Muslims to non-Muslim as as seek advised
country) and in
is is lost Muslim he Tradition that the of a and most entitled property wisdom stated another to it wherever it may be found. All these point towards the recognition by Islam of possible in humanity betterment temporal matters. the to of alternative and permissible routes AbuSulayman thus observed that:
"(t)he Islamic call for social justice, human equality
(equity), and submission to the divine will and directions of the Creator requires the deepest human the total as absence of arrogance and as well of responsibility, and sharpest sense s20 both internal in and external communication. egoism, The view that the international human rights regime is an imperialist agenda is not in human is human It discourse Islamic the the to rights rights. common on peculiar 21 is from fear developing This the discourses of all and of neo-colonialism, a results nations. developing the nations under experience of most colonial effect of past psychological Western imperialism.
That fear is sometimes strengthened by the Western nations'
insistence on defining human rights only in the western perspective without consideration for the contribution and understanding of other cultures. If we understand international human rights strictly
as a universal humanitarian
for State individuals the for the the and misuse of authority against protection of objective it is is incompatible dignity, Islam human that then the very with view enhancement of human dignity is because That the the of of protection and enhancement unsustainable. beings has always been a principle of Islamic political and legal theory. While there may be law international human between differences Islamic and rights some areas of conceptual law, this does not make them incompatible. It is sometimes also argued that human beings have no rights in Islamic law but only to submit to God's commands. 22 This is also beings it is human God's While to to true that are submit commands, this does misleading. inherent have Islamic law. The principle of legality is a that they no rights under not mean 18Q 16:90. 19See e.g. Q 5: 5 "... Co-operate with one another in good deeds and piety but not in sin and enmity ". 20AbuSulayman, A. A., (1993) supra, note 9 above, p. 54. (emphasis added).
21Seee.g. Mutua, M. W., (1996) supra, note 12 above,pp. 589-657.
22See e.g. Imam Khomeyni's view in that regard in Rajaee, E., Islamic Values and Worldview: Khomeyni on Man, the State and International Politics (1983) pp. 42-45.
39
fundamental principle of Islamic law whereby all actions are permitted except those clearly 23 inherent have human beings to Shari `ah. That by rights everything the means prohibited but have humans To that for only no rights things say specifically prohibited. except life illegality, God very restrictive and to makes which of expresses a principle obligations difficult. That will be inconsistent with the overall objective of the Shari `ah, which is the later. be being human as analysed will well promotion of Most Muslim proponents of the incompatibility
view are really not opposed to the
disappointment Their human with, and a reflects only position rights per se. concept of ideology hegemony Western thus considered as championed any against and protest against by Western nations. They often refer to "double standards" of the West and the general disparity in reactions to human rights abuses under "Islamic" and "non-Islamic" regimes as 24 instance For human in international lack the one regime. rights of sincerity evidence of Egyptian writer has been quoted as denouncing the UDHR in the following words: "I must admit that I am not a supporter of the Universal Declaration of Human Our Rights that the United Nations Organisation issued on December 10,1948. history of civilisation has taught us to be wary of big and noble words as the reality into be how big has history transformed taught atrocious crimes. can words us of our We cannot forget that the initiators of the Declaration of Human Rights and the plain French citizens are the same people who shortly afterwards, and before the ink of the Declaration had dried up, organised a campaign and sent their forces under the leadership of their favourite general, Napoleon, to Egypt. We must not forget either that the United Nations Organisation issued the Universal Declaration of Human Rights in the same year that it recognised the Zionist state that usurped Palestine and including in Declaration, the its the right of of every right stipulated people robbed life. s25
Huntington has also drawn attention to this protestation by pointing out that: "Non-westerners.. do not hesitate to point to the gaps between Western principle and . Western action. Hypocrisy, double standards, and "but nots" are the price of but if it brings Islamic is Democracy not promoted pretensions. universalist fundamentalists to power; nonproliferation is preached for Iran and Iraq but not for human rights are an issue with China but not with Saudi Arabia;... Double Israel; ... "" in the of universal standards of price principle. unavoidable standards practice are
Finally, the view that the international human rights objective harbours a hidden antiMuslims having from that, suspicion among some separatedthe results also religious agenda 23SeeChapter3, p. 32 above. 24In nearly all humanrights communiqueor resolutionsadoptedat every Islamic conference,the questionof Palestine always comesup as an issueof double standardsin international relations and law. 25SeeSayf al-Dawla, I., "Islam and Human Rights: Controversy and Agreement" (1988) 9 Minbar al-Hiwar pp.33-39, cited in R. al-Sayyid, "ContemporaryMuslim Thought and Human Rights", (1995) 21 Islamochristaina, p.27 at 28.
40
Church from the State in the Western world, the West intends the same for the Muslim world faith discredit Islamic international human the to "crusade" the through wants rights of and from its in humanism ideology totally international to religiosity remove effort of with a new in be is it This, governments the world order. as may seem, not an opinion canvassed only Muslim States but even by some ordinary individual
Muslims whom human rights are
intended to protect. This indicates the need for continuous education and practical demonstration of sincerity and genuine commitment to the humanitarian ideals of international human rights. Bielefeldt has stressed in this regard that human rights "do not for transhistoric to measuring cultures and religions generally yardstick, serve as a pretend be but `civil international be (and) religion"' presented as, an not and should not, are ... light "new on the self-perception of cultural and religious as shedding presented in has dignity, human because, the many cultures, which roots principle of communities "Z7 for human foundation the rights. serve as
IS THERE A THEORY
OF RIGHTS
IN ISLAMIC
LAW?
A common view in the discourse of rights in general and human rights in particular is 28 idea Kamali does is duties the law that Islamic of rights. not recognise that only a system of has described this view as a "persistent misunderstanding of Islamic law" on the subject of 29 Although Islamic law emphasises the concept of duty, this does not seem to rights. the the system. within concept of rights annihilate or subsume
The existence of rights in
Islamic law can be established logically, semantically and through its legal sources and methods respectively. Logically, the fact that Islamic law provides for legal remedies is a prima facie indicator be legal is because This its the available remedies can of concept of rights. recognition of but duties the in that the also concept of rights of concept recognises not only system a only for for Arabic has The law Semantically Islamic term too, rights. word a and claims. 30 "haqq " fact, its is ". Literally, "huqüq is "haqq" "right" means established and plural truth, justice, right, claim or reality.
It also connotes duty when used with the Arabic
26Huntington, S.P., The Clash of Civilizations and the Remakingof World Order, (1996), p. 184. 27SeeBielefeldt, H., "Muslim Voices in the Human Rights Debate" (1995) 17 Human Rights Quarterly, 587 at 616.
Z$See e.g. Siegman, H., "The State and the Individual in Sunni Islam, " (1964) 54 The Muslim World, p. 14 at 23; Donnelly, J., Universal Human Rights In Theory and Practice (1989) p. 51. 29See Karnali, M. H., "Fundamental Rights of the Individual: An Analysis of Haqq (Rights) in Islamic Law" (1993) 10 American Journal of Islamic Social Sciences, No. 3, p. 340 at 341. The article is a detailed and scholarly analysis of rights in Islamic law from which the present researcher has benefited extensively.
30Arabic is the languageof the primary sourcesof Islamic law. It is also the common languageof the Middle East and
41
31 "right it is "right (upon). In "ald" that either as upon" or sense constructed genitive against" (haqq `alä) to connote duty.
Its juridical
usage has followed its literal meaning
in it both has been Islam the primary the quite extensively of and used earliest period since sources of Islamic law and the works of the earliest Islamic jurists. The sixteenth century Hanafi school jurist, Ibn Nujaym is perhaps the first to give a legal definition of the term He defined it as "mä yastahigquhü al-insän" meaning "that to which a person is 32 Contemporary Islamic jurists even define "haqq" in broader terms. 33 While entitled".
"haqq".
Yusuf Musa defined "haqq" as "an identifiable benefit" (maslahah thäbitah) conceded by the Legislator to the individual or to the community or to both"34 Shalabi defined it as "every , benefit (kull maslahah) conformable to the Shari'ah"3s 36 define (haqq) "maslahah ". jurists Islamic Nearly all the tend to right with reference to This refers to the ultimate goal of rights. In Islamic law, a right is not an end in itself. It is a is jurists identified "maslahah ". have This term, the that to as end what end, and an means is legal interest, Islamic benefit literally the to express or mostly used means welfare, which 37 interest "maslahah ". doctrine of public or public welfare when qualified as mursalah Although "maslahah " as a legal doctrine is generally conceived as collective or communal in it is in law Islamic the which sense extends of also goal rights maslahah ultimate welfare, to the benefit of individuals to ensure individual well being. The jurists' definitions of haqq (right) support this submission. For instance Yusuf Musa's definition of right as maslahah, does not restrict the term to the concept of community but also mentions the individual. Shalabi's definition also mentions "every benefit" (kull maslahah), which will include that of the individual. Furthermore, the ultimate objective of rights does not actually end with the individual per se. The well being of the individual will consequently ensure the well being of the community and ultimately the realisation of public welfare and vice versa. This makes the doctrine of maslahah very relevant in the concept of human rights under Islamic law. Turning to the sources of Islamic law, one observes that in the Qur'an "haqq" is mostly used to connote "truth", "certainty",
"justice"
or "right".
A specific use of the word to
North African countries, and is spokenby many non-Arab Muslims world-wide.
31See e. Cowan, J.M. (ed. ) The Hans Wehr Dictionary of Modern Written Arabic (1960) p. 192 g. and under "Hakk" in Bearman, P.J., (ed. ), The Encyclopaedia oflslam, Glossary and Index of Technical Terms to Volumes I- VIII (1997) p. 107.
32Ibn Nujaym, Z., al-Bahr al-Räiq: Sharh Kanz A[-Dagä 'iq (Arabic) (1311AH) cited in Tamüm, M., al-Haqqfi al-Shari'ah al-Islämiyyah, (Arabic) (1398AH/1978CE) p. 33. Seealso Karnali, M. H., (1993) supra, note 29 above,e. 343. 33See Tamüm, M., ibid., pp. 36-37. See also al-Zuhayli, W., al-Fiqh al-IslämI Wa Adillatuh (Arabic) (4` Ed. 1997), Vol. 4, pp. 2837ff.
SeeMusa, M. Y., al-Fiqh al-Islamiyy (Arabic) (1954) p.211.
35See Shalabi, M. M., al-Madkhal Li al-Figh al-Isldmiyy, (Arabic) (n. d) p. 238. 36See e.g. Tamüm, M., (1398AH/1978CE), supra., note 32 above, pp. 36-37. 37See e.g. Hallaq, W. B., A History of Islamic Legal Theories (1997) pp. 112-113; Kamali, H. M., Principles of Islamic Jurisprudence (1991) p. 267; and Masud, M. K., Shatibi's Philosophy of Islamic Law (1995) pp. 127-164.
42
is in "And in 19 Qur'an 51: "duty" their "right" to wealth a occurs as opposed connote in Sunnah, find We the for (haqq) the the many sayings of also outcast". needy and right the Prophet Muhammad where "haqq" is used in the above context. An example of his use of the term "haqq" to connote right, as opposed to duty, is in respect of Qur'anic heirs, where he is reported to have said: "God has given every legal heir his/her right (in the inheritance) 38 is "haqq" heir". Although for legal bequest (additional) be used there a no shall so (as its duty (right in Qur'an to to the opposed connote right use against), connote sometimes 39 Due to its significance in Islamic law, it is nearly impossible not to duty) is more common. juristic Islamic in "haqq" find the the works. to most classical and contemporary word use of It is observed that the jurists have also mostly used "haqq" to connote right as opposed to duty in their legal scholarship. From the very early period of Islamic jurisprudence one finds discourses on the nature of rights by Islamic jurists on questions such as whether rights were liability. to the give rise rights could of exercise absolute and whether and al-Shäfi'i,
While Abu Hanifah
the eponyms of the Hanaji and Shäfi'i schools of Islamic jurisprudence
Mäliki Malik, the the held the that of eponym absolute, exercise of rights was respectively, be thus jurists held that the not should rights were not absolute, and view school and other 40 in later injury The theory the to to of rights. modem view prevails others. cause exercised It becomes evident from the above that the concept of rights is not alien to Islamic law as is often portrayed. Rights are however very interwoven with duties under Islamic law. The two are seldom treated in isolation from each other. This indicates the appreciation of the correlating nature independent legal duties jurisprudence, In Islamic not two are rights and concepts. of the is "hukm" (legal legal from Islamic both They the which ruling) norm called evolve concepts. in form of either a sanction, command or prohibition aimed at regulating normally conveyed 41 human conduct. Rights and duties are therefore, mediums through which the law functions. Thus the law will often place a duty on one party which conversely confers a right on another through the same injunction. Many verses of the Qur'an vividly demonstrate this approach.
38Reported by Abo Däwüd. See e.g. Fazlul Karim, A. M., Al-Hadis: An English Translation and Commentary ofMishkat-ulMasabih with Arabic Text (1994) Vol. 2, pp. 324-325. Hadith No. 34. 39A Concordance of the Qur'an shows a total of 247 entries of the word "hagq" out of which 15 entries are used in the context of "right" (Q3: 21, Q3: 112, Q3: 181, Q4: 155, Q5: 116, Q6: 151, Q11: 79, Q17: 26, Q17: 33, Q22: 40, Q25: 68, Q40: 75, Q41: 15, Q46: 20, Q70: 24) while only three entries (Q2: 180, Q2: 236, Q2: 241) are used in the context of "duty". See Kassis, H. E., (ed.) A Concordance of the Qur'an (1983) pp. 537-542. Note however that there are other Qur'anic terminologies for "duty" apart from the word "haqq ". This analysis is not to say that rights are more recognised than duties in the Qur'an but to show that the idea of "rights" as opposed to "duty" exists in Islamic law, and that the term "haqq" is mostly used to connote "right" rather than "duty".
40SeeKhadduri, M., and Liesbesny,H.J., (ed.) Law in the Middle East (1955) Vol. I, pp.186-187. 41SeeKarnali, M.H., (1993) supra, note 29 above,pp. 34 land 347-350.
43
Islamic legal theory recognises three essential elements in this process. First, there must be the Lawgiver (häkim), then the object of the law (mahküm fih) and lastly the subject of the law (mahküm alayh). 42Every rule regulating human conduct in Islamic law must conform to that principle. We shall now analyse the three elements in relation to human rights. God is considered generally as the original Lawgiver through His revelation which is the major source of Islamic law. The role of human beings in the legal process is only to interpret, expand and apply the law. In Islamic human rights, God is thus considered to be 43 duties. Human rights must therefore conform to His commands as the source of rights and is belief, Qur'an. in Islamic the the to conclusive of which, according revelation, conveyed This raises questions concerning the relation between law, revelation and reason. Does the human intellect have any role at all in the determination of what is good or evil and what is by Three the classical Islamic theologians on this advanced views were right or wrong? as question First is the view that human intellect can not be relied upon as a source of law and that is is This by the the wrong, good or evil. only criterion of right or view advanced revelation the Ash 'arä theological school. They argue that human reason is liable to error, and that in is differ Thus be or wrong, evil. respect what right good or what may of perceptions be by the person may evaluated as wrong by the reasoning of one evaluated as right inevitable human They to the subjectivity of reasoning and of another. also point reasoning 45 duties. law, is rights and conclude that revelation alone the authentic source of Second is the view of the Mu `tazilah that human intellect can identify right or wrong is harm derivable from by benefit that to the evil reference or a particular or overall good and identifies human They that thus reason whatever reason as right emphasise and assert action. is also right in the sight of God, and vice versa. They argue that reason and revelation must it is is impossible intrinsically for God that to command what correspond, wrong or always intrinsically is is Their therefore that the probity of revelation right. position prohibit what should be subjected to its compatibility with human reason. This view manifests an utilitarian basis benefits the the they entail. It also exhibits rights are evaluated on of approach whereby law traits the school. Al-Ghazäli argued that this approach is too relative, some of natural because the standards of right and wrong vary with environment and from person to person. 42See e.g. Qadri, A. A., Islamic Jurisprudence in the Modern World, (1986) p. 18; Karnali, M. H., (1991), supra, note 37 above, pp. 342-349; and Hasan, A., Principles of Islamic Jurisprudence (1993) pp. 230-387. 43Seee. Maududi, A. A., Human Rights in Islam, (1993) p. 15; g. and Uthmän, M. F., Huqüq al-Insän Bayn al-Sharl'ah a! Islämiyyah Wa al-Fikr al-Qanüni al-Garbiyy (Arabic) (1402AH/1982CE) p. 16.
44SeeKamali, M. H., (1991) supra, note 37 above,pp.343-345. 45ibid., p.343.
44
46 The law of God can thus not be subjected to such a relativistic approach. The Mu'tazilah faced lot Their theology of opposition. a rationalists whose as pure were generally considered jurists large later by be Islamic however law to to to extent a utilised was utilitarian approach in the methods of Islamic law. Islamic legal scholars therefore acknowledge that their impartial 947 be denied by "cannot legal Islamic thought to observer. an contribution The third is the MäturidI view. While agreeing that right and wrong can be discerned be basis human holds the intellect, human that this evaluated on reason must through school law God They the divine that of may not always necessarily correspond argue revelation. of 48 be law is Since intellect liable human because the to human must error. to reasoning interpreted and also continue to grow and adapt itself to new situations of life, reliance on human reason becomes inevitable. But this must always be subjected to the evaluation of divine revelation. This view attempts to harmonise the two previous ones and has been between law, is It the by Hanau the the relationship view on most practical school. adopted is Sunni Ash'arl the Although the traditional the majority view, view revelation and reason. (legal (legal law ijmä' Islamic consensus) analogy) and as giyäs such adoption of methods of Ash'arl While literal impossibility the that demonstrate the view. application of of a clearly law it independent to totally exclude reason of can not mean source an as reason view rejects In for the tool practice, almost all of revealed sources. scope expanding as a necessary Islamic jurists tend to follow the Mäturldi approach when they expand the law to cover new inevitability Sunnah. The by Qur'än this the the of was or either covered expressly areas not Abü by al-Hassan al-Ash'ari actually confirmed
(the eponym of the Ash'arI theological
in dealing to but himself, that matters relating reason new cases, with only cautioned school) divine, "without from distinguished the be those to the confounding rational relating should 49 Qutb Sayyid that thus the the traditional traditional, maintained the rational". with or with full recourse to reason by modem Muslims was essential to fulfil the demands of revelation. He observed that both the Mu'tazilah
and Ash'arI views failed to estimate the value and
by it former The reason placing over revelation overestimated correctly. position of reason its important in its lost later the sight of role significance and realising underestimated while the demands of divine revelation. He thus advocated a middle path that aims at creating a 50 human between happiness felicity. reason and revelation to ensure and correct relationship 46ibid., p.344; Seealso Al-Ghazäli, A. M., al-Mustas Min Ilm al-Usill, Vol. I (Arabic) (1356AH) pp. 36 and 136. 47Qadri, A. A., (1986) supra, note 42 above,p. 156referring to Abü Zaharah's work on Imam Abü Hanifah. 48Seee.g. Khalläf, A. W., Ilm Usül al-Figh, (Arabic) (1398AH/1978CE) p.99. 49SeeMcCarthy, R., The Theologyof al-Ash'an (1953) p. 131.
soSee Qutb, S., FI Ziläl al-Qur'an (Arabic) (1974) Vol. II, p. 806 and Abu Rabi', I. M., in his review ofMonsalli, A. S., "Radical Islamic Fundamentalism: the Ideological and Political Discourse of Sayyid Qutb" (1994) 1 Al-Mizan, Issue 1,
45
Al-Ghunaimi has also pointed out that "Islam recognises for reason a considerable domain, i51 by jurists `ämalat. The Muslim in term the answers as what mu realm of particularly Mu'adh bn Jabal to the Prophet's questions as to his sources of law, when he was deployed 52 (legal doctrine i/tihäd It judge Yemen the this to of approach. established confirms as a demands, be law to the the able meet static and not will remain reasoning) without which functions and new developments of life. Under Islamic law, the will
of God and His
indirectly by divine directly be known "either through therefore or revelation, command can 53 (legal reasoning). means of inference, deduction and ijtihäd"
Now turning to the objects of Islamic law (mahkümfih) with regards to human rights, these are both rights and duties through which human conduct is regulated, and the subjects is human law While beings human (mahküm the law to the addressed. whom are alayh) of beings are entitled to the rights granted under the law, they are also under an obligation to fulfil their duties within the law. In line with general principles of Islamic law, rights are further subjected, as objects of law, to three conditionalities. Firstly, the right must be identifiable.
It must not be nebulous
be determined. Secondly, it be legally the that to the right must can not extent or ambiguous be demanded human No be It may right capacity. must accomplishable within executable. that is not within the power of whom there is either the positive or negative obligation to its 54 by it. Shari'ah In be lawful fulfilment. Thirdly, the right must and not prohibited within the the light of the above principles, Breiner had observed notably that the Islamic legal theory developed highly "a awareness of ... rights and obligations, a combination of which reveals individuals formulate to the Islam to rights of seek safeguard a system which would enabled to an extent which was not common in the legal thinking
of many cultures and
"55 civilisations. One observes however, that the founding jurists of Islamic law mostly addressed issues legal in from few but Apart monumental works specialised rights. a of personal and private 56 jurists did law, International Islamic law, the al-Shaybäni's works on early such as areas of issues into legal bother tight compartments. their treatment to specifically of separate not P,133 at 135. Al-Ghunaimi, M.T., TheMuslim Conceptionof International Law and the WesternApproach (1968) p. 101and n. 4 thereof. $2See Chapter 3, pp. 27-28 above.
53SeeKarnali, M. H., (1991), supra, note 37 above,p.342 especiallypp.366-391for a detailed analysison the doctrine of ijtihdd as"the most important sourceof Islamic law next to the Qur'an and the Sunnah". Seealso generally al `Alwäni, T.J., Ijtihad, (1993). 54Seee.g. Kamali, M. H., (1993) supra, note 29 above,pp.344-345. ss Bremer, B., "A Christian View of Human Rights in Islam", in Two Papers on Shari'ah (1992) p. 1 at 3. $6al-Shaybäni, M. H., al-Jämi' al-Kabir, Kitab al-Siyar and Kitdb al-Asl.
46
Human rights was thus not treated in their works as a separatesubject of public law, but individuals both State. duties framework the the and and of of rights general addressed within
HUMAN
RIGHTS
WITHIN
ISLAMIC
LEGAL
THOUGHT
The common Arabic term used today to express human rights in Islamic legal writings from is derived is ". The "huqüq discourse two words term a construct al-insän and "huqüq"(rights)-plural of "haqq" (right), and "insän" (human being). The term "huqüq alinsän" is of recent coinage and it neither appears in the primary sources of Islamic law nor in the writings of the founding jurists of Islamic law. The term "huquq Adamiyyin " which also least, found, is however humans"57 "rights at as early as the eleventh century used of means of Government ", wherein he 58 individuals. duty discussed the of the ruling authority to protect and ensure certain rights of
by al-Mäwardi in his famous work titled
"The Principles
Conceptually, many scholars have observed that the idea of human rights is not alien to Islamic law. Breiner has noted that "(I)slam developed the concept of human rights early in its legal tradition. ,59Ostrorog had also stated earlier before him that: "Considered from the point of view of its logical structure, the system (Islamic law) is one of rare perfection, and to this day it commands the admiration of the student. If the contents of that logical fabric are examined, some theories command not ... laid down, but Those Eastern thinkers the ninth century of surprise. only admiration in Rights Man, basis those very terms, theology, the the the of of of principle on inviolability liberty, individual the and of person and of rights of comprehending humane, Law War the of which chivalrous prescriptions elaborated a of property, ... in belligerents Great War; blush have the to the expounded a put certain would doctrine of toleration of non-Muslim creeds so liberal that our West had to wait a 60 " (emphasis added) before thousand years seeing equivalent principles adopted.
Briffault has also been quoted in similar vein as follows: "The ideals of freedom for all human beings, of human brotherhood, of the equality of all men before the law, of democratic Government by consultation and universal suffrage, the ideals that inspired the French Revolution and the Declaration of Rights, that guided the framing of the American Constitution and inflamed the struggle for independence in the Latin American countries were not inventions of the West. They find their ultimate inspiration and source in the Holy Quran. They are the quintessence of what the intelligentsia of Mediaeval Europe acquired from Islam 57Literally "rights of Adam's offsprings". In Islamic terminology human beings are generically addressed as "Adam's offsprings" being descendants of the first human being Adam. 58See al-Mäwardi A, Al-Ahkdm al-Sultäniyyah (Arabic) (1386AH/1966CE) 2ndEd. pp. 243-258. See also the English Translation, Yate, A., Trans. The Laws of Islamic Governance (1996) pp. 337-362 at 341.
59SeeBreiner, B., (1992) supra, note 55 above,p. 3.
60Ostrorog, C. L., The Angora Reform (1927) pp. 30-31, cited in Fyzee, A. A. A., Outlines of Muhammadan Law (1964) 3a Ed., pp. 51-52.
47
Sicily, Spain, Muslim the the through of channels various of centuries a period over Crusader; and of the ideals propagated by the various societies that developed in Europe in the wake of the Crusades in imitation of the brotherhood associations of Islams61
Islam's first contact was with a very chaotic society in the seventh century, which it described as an environment of ignorance (jähiliyyah).
The reformative stance of Islam and
its ultimate objective of bringing humanity from the darkness of ignorance into the light of liberation humanity inception, from its the directed towards of on philosophy, enlightenment, 62 its Thus, major moral principles that Prophet. the basis of its holy book and examples of dignity (karämah)63, human human for basic the rights, such as concept of postulates serve as freedom (hurriyyah)64, humanity (insdniyyah)65, equality (musdwah)66, beneficence (ihsdn)67, justice (adälah)70 (ta'äwun)69 (mas'üliyyah)68, evolved, and and co-operation responsibility 71 law doctrines Islamic in theology, the and governance. of general were embodied The early jurists had carefully categorised the rights that evolve from Islamic law in huqüq "huqüq God) (rights Allah" into "huqüq human or and al-ibäd" of conduct relation to Adamiyyin72 (rights of humans). As indicated earlier, rights are not an end in themselves they is "rights beings. Thus, being human there though for the a notion of even well of are means is in God He for law, in the Islamic God" not need welfare of per se. such rights are not of beings. While benefit human of they They to the may or welfare are means only of welfare. be designated de jure as "rights of God" they are de facto "rights of humans" - human rights. There are "rights of God" in both the acts of worship and in inter-human relations. The first "right of God" is His right to be worshipped by every human being. The correlative duty to God. is being That the is human beings God" "right that except no other that worship shall of God (haqq Allah is in It Islam. human of right alan exclusive conduct nucleus of every khälis). The immediate rights that emanate from this is the guarantee of the individual's liberty and dignity.
Every person is liberated from subjugation to fellow beings, making
human beings equally dignified. Thus, in the words of Raba ibn Amar to the Persian 61Quotedin Bari, M. E., "Human Rights in Islam with Special Referenceto Women's Rights" (1994) 5 Dhaka University Series,Part-F,No. 1, p. I at 12. 62Seee.g. Q 14:1 "A Book which Werevealeduntoyou in order that you lead mankind out of the depthsof darknessinto light..... . 63 See e.g. 64See e.g. 65See e.g. 66Seee. g. 67See e.g. 68See e.g. 69See e.g. 70See e.g.
Q17: 70. Q 5: 89. Q46: 15. Q4: 1. Q 2: 195. Q 7: 6-7. Q 5: 2. Q5: 8.
7' There are also numerousTraditions of the ProphetMuhammad that emphasiseeachof theseand other similar values.
48
Emperor at the dawn of Islam, the mission of Islam was "to liberate humanity from the worship of humans to the worship of God, from oppression into freedom and from the injustice of (other) faiths into the justice of Islam. "73 The notion of "rights of God" plays an important role in inter-human relations by duties human beings, fundamental human that upon which ensure certain correlative placing rights are protected both in private individual
interactions and in interactions between
individuals and the State. For example there exists a "right of God" in the maintenance of justice in all human interactions as enjoined in the Qur'an as follows: "God commands you to render back trusts to those to whom they are due, and when you judge between people that you judge with justice... s74.
This injunction is binding on the whole of humanity, individually and collectively. In it is a "right of God" that justice be maintained, and because the institutions of justice are State is duty, State justice. the to there a positive particularly upon maintain and administer organs, From this emanates the right to justice for every human being. Where this duty is not fulfilled, any person whose right to justice is thereby violated is entitled to claim redress even incident State. An be during that the reign of the example of may cited an occurred against Umar ibn al-Khatäb, the second Caliph of the early Islamic State in Medina. While Umar State, he declared 400 dirhams Caliph than the that once no man should more pay of as was dowry to any woman.
A lady protested saying that this was an injustice against women,
because the Qur'an permitted that a woman may be given a whole treasure (kintär) as dowry, 75 thus the Caliph could not deny women of that right. The Caliph agreed that the woman was right. He thus went back to the pulpit and declared: "I had earlier prohibited you from giving more than 400 dirhams as dowry. Whoever wishes may give as much property 76 This illustrates the likes". law, he Islamic recognition, under of the right of individuals as to challenge State legislation that infringe on their ascertained legal rights. Mahmood has thus pointed out that "Man's right to protest against tyranny and injustice is given by Islam to be it beings individual howsoever human highly the is the state, all an ruler or placed who guilty of such tyranny or injustice. "77
The "rights of God" are, therefore, so called becausethey emanatefrom duties that God 'Z Seee.g. al-Mawardi, supra, note 58 above. 73SeeUthmän, M. F., (1402AH/1982CE) supra, note 43 above,p.7. 74Q 4:58. " SeeQ 4:20. 76See e.g., Doi, A. R., Shari'ah: The Islamic Law (1984). p. 164). See also Chapter 7 of al-Mäwardi, A., Trans. Yate, A., (1996) supra, note 58 above, pp. 116-143 for further examples of Judicial Redress.
49
has placed, through His law, upon every individual as well as upon the State, and from which the whole community of the human race derives not only substantive rights but also (of God) in than They their a right of a ruling more are, reality, violation. protection against (of God). 78 In other words, they are public rights to which every individual is entitled for the 79 They are different from the private rights of individuals in that human. being fact of mere 80 has duty in State to enforce them. the State. The a the duties that ensure them are placed The "rights of humans", on the other hand, are the individual rights or private rights which an individual has an option to or not to claim.
81 into three categories. Thesemay be The MälikI jurists divided the "rights of humans" individuals The the rights of are special rights classified as special, general and private rights. fulfilment from God. They the emanate vis-ä-vis
of the duty to worship Him. Thus the
Prophet Muhammad asked Mu'ädh on one occasion whether he knew the right of God upon human beings and the right of human beings upon God. Mu'ädh answered, "God and His Apostle know best." The Prophet Muhammad then said, "God's right upon His servants is that they should worship Him alone and ascribe no partners to Him. " and "The right of the 82 is , This is He for doing God, them. that that, not a right should not punish servants upon it is belief, Islamic in is "special" to It that, the granted according sense right a general right. God. fulfil duty the those to of worshipping who only The general rights are the rights that ensure the well being of every human being within further into being inherent in human They State. without any the nature and come are by God. Some Muslim human being fact being the than as a of created evidence other is because "natural describe "al-huqüq that them rights", as al-fitriyyah" scholars sometimes they arise without any special or legal undertaking other than the natural fact of being human. 83The private rights are the rights between individuals such as contractual rights. Human rights can thus emanate in Islamic law either from the "rights of God" or the "rights of humans" or a combination of both.
This does not practically allocate specific
follows beings, but human God to to a religio-legal approach of rather others and rights
77Mahmood, T., "The Islamic Law on Human Rights" (1984) 4 Islamic and Comparative Law Quarterly, p. 32 at 40. 78See Karnali, M. H., (1993) supra, note 29 above, p. 348.
79Seee.g. Ibn Malik, I.A., Sharh al-Manär al-Anwdr (Arabic) (1308AH) p.886; and Uthmän, M. F., (1982CE)supra, note 43 above,p.29. 80See Karnali, M. H., (1993) supra, 29 above, p. 350.
81Seee.g. Tamüm, M., supra, note 32 above,pp.61-62.
82Reported by al-Bukhari, See e.g. Khan, M. M., (Trans. ) Sahih a]-Bukhari 80, Hadith Arabic-English Vol. 4, Ed. (1997) p. No. 2856. See also al-Shätibi, A. I., al-Muwäfagdt (Arabic) (1997), Vol. 2 p. 538ff. 83See e.g. Ibn Nujaym, supra, note 32 above.; Karnali, M. H., (1993) supra, note 29 above, pp. 346-347; Abü Sinnah, A. F., "Nazariyyah al-Haqq" in `Uwaydah, M. T., al-Fiqh al-Isläm? Asäs al-Tashri (1391 AH). The Prophet Muhammad said in one Tradition that: "every child is born in a pristine natural state of Islam...... .
50
ensuring a non-compromise of the rights that every person is entitled to enjoy as a human being. Thus the rights categorised as "rights or God" cannot be waived. They are mandatory by the Shari'ah. They are public rights which the State has either a positive or negative obligation to ensure their fulfilment. Their being attached to God may be seen as a sort of built-in
element to ensure the full enjoyment, by human beings, of the inherent rights
conferred on them by God, from Who's sanctions, according to Islamic beliefs, none can escape, for the violation of those rights, which in essence will amount to not fulfilling
an
There is thus the view that every right has an element of "right of God" in order to ensure its fulfilment. 84 In the opinion of al-Qaräfi, a Mäliki jurist of the thirteenth
obligation to God.
is "right God" be Shari'ah fulfilled because all the the the of whole of which must century, 85 from derived His And thus since the State must command. rights and obligations are govern within the provisions of the Shari'ah, the rights of individuals become guaranteed. It is in that context that Brohi has observed as follows: "The perspective of Islam on (human rights) is theocentric - God-conscious. the ... strategy of Islam is to emphasize the supreme importance of our respect for human rights and fundamental freedom as an aspect of the quality of religious consciousness that it claims to foster in the heart, mind and soul of its followers. The perspective is "theocentric" through and through... Man acknowledges the rights of his fellow men because this is a duty imposed on him by the religious law to obey God and the Prophet and those who are constituted as authority to conduct the affairs of state. In every thing that a believer does his primary nexus is with his Maker, and it is through Him that he acknowledges his relationship with the rest of his fellowmen as even 86 " with the rest of creation.
The theocentric element operates as a factor for the achievement of the well being of humans and the enjoyment of their human rights under Islamic law and not as an obstruction to it. This would however depend greatly upon (and envisages) compliance with the Shari'ah by both the rulers and the ruled. The pertinent question here is: What happens where the ruling authority decides to govern contrary to the provisions of the SharI'ah and denies the guarantee of human rights and welfare? Will such ruling authority be left accountable to God only, perhaps in the hereafter? This concerns the issue of accountability of government and the right of the people to criticise or challenge the abuse of power by rulers. We will examine that later below under the section on the State and the enforcement of human rights in Islamic law. 87
84See e.g. Tamüm, M., supra, note 32 above, p. 80.
85SeeAl-Qaräfi, S., Kitäb al-Furüq (Arabic)(I346AH) Vol.! p. 104.
86Brohi, A. K., "Islam and Human Rights" in Gauher, A., (ed. ) The Challenge of Islam (1980) pp. ] 79-181. 87See page 63 below.
51
HUMAN
DIGNITY
AS BASIS FOR HUMAN
RIGHTS
IN ISLAMIC
LAW
As earlier analysed in Chapter 2, human dignity is the principal normative concept 88 in both finds human It idea the religious and secular acceptance rights. of underlying thought and is thus an important common ground factor in the international human rights discourse. Islam strongly acknowledges the dignity of human beings and Islamic legal theory in Qur'an The terms that its clear very emphasises and enhancement. preservation promotes God created humans "in the best of moulds"89, honoured them and also conferred special favours on them. 90 The very narration of the creation of Adam, his designation as the indicate his the the the God worth of angels, even above elevation and on earth of vicegerent 91 The human being is considered as the "king" of the in being Islamic human teachings. him faculties intellect him to has that God the enable and all other granted and cosmos is GodIslamic dignity, teachings, Human to that according esteemed position. maintain be death. from It beings in taken inherent human to is cannot conception all granted and 92 is institution. That to individual the by unborn rights attach even why some or any away 93 has, inter law. For in dead Islamic the the child alia, a unborn example, child as well as be be dead has to to legitimacy94 the life to mutilated and a right not while and a right right to 95 Islamic law thus prohibits the violation of human dignity both buried decently and quickly. in life and in death.
An important aspect of human dignity in Islam is, as earlier stated, freedom from worship
does God. This being not only reflect except of any other
a theocentric
is "king" illustrates if Man but the that of the cosmos and considered as also characteristic, the most dignified of all creatures, then it becomes most undignified of him to subdue himself to any other creature. Not to any other non-human creature because he is more dignified than it and not even to any other human being because they are equal. Man is only humans but fellow in his deal to and all other creatures, not with a righteous manner expected 88See p. 8 above. 89See Q 95: 4.
90SeeQ 17:70. 91SeeQ 2:30-35. 92Seee.g. 4thand 5`hpreambularparagraphsof the Universal Islamic Declaration of Human Rights adoptedby the Islamic Council of Europe on 10 September1981. 93cf. Mayer, A. E., (1999) supra, note 13 above, pp. 60-61 (argues that "It is hard to see how conventional "right" can be dead.. (and) helpless to vindicate the "right" that is being afforded them). See also involved, since the beneficiaries are ... Belliotti, R., "Do Dead Human Beings Have Rights? " (1979) 60 Personalist, pp. 201-210.
94Abortion is generally prohibited under Islamic law except for a few recognisedvalid reasonssuch aswhen the life of the mother is endangered.Seee.g. Omran, A. R., Family Planning in the Legacy of Islam (1992) pp. 8-9. 9SSeee.g. Maududi, A. A., (1993) supra, note 43 above,pp.37-38. Seealso Art. 4 of the OIC Cairo Declaration on Human Rights in Islam, which provides that: "Every humanbeing is entitled to the inviolability and protection of his good name and honour during his lifetime and after his death.The Stateand society shall protect his remainsand burial place." (emphasisadded).
52
his Creator. Such in himself to He himself a them. to worship to subdue only subjugates for being human the both rights the special and general rights as a person accumulates 96 inherent is because Islam God. the That that duty fulfilling the recognises of worshipping dignity conferred upon human beings by God can be further enhanced by each person in Qur'anic is deeds. This that: the God-consciousness statement through evidenced good and "... Verily the most honoured of you in sight of God is the one who is most God-conscious 97 and righteous". Islam also recognises that every human being is born free, thus no one may be coerced legitimate liberty deprive in the be to life of any way unnecessarily regimented nor shall 98 beings. There are thus repeated prohibitions against persecution, aggression and human Sunnah. At in Qur'an the time both dignity inherent human the same the and violations of himself develop through is to piety and perfection and seek encouraged every person Islamic dignity. inherent The in the to of slavery under question enhance righteousness order law becomes relevant here. Slavery was widely practised in Arabia as well as other parts of heinous Despite in the Islam before the the nature of the century. seventh the world advent of institution it was a big source of labour and income in both the East and West. Slaves were treated in most inhuman and undignified fashion. No philosophy that promoted the concept in insensitive been those have to the dignity human of plight slaves reasonably could of Sunnah Qur'an both in the Thus greatly encouraged the and spirit of reformation, periods. 99 his The Prophet humane treatment the and of slaves. manumission and and recommended 100 is direct Although there in liberation the no of slaves. companions also set many examples that its Shari'ah the authorises or provisions no contains also abolition, on is freeing jurists is Islamic that There slaves a consensus among supports slavery. in Qur'an it is first indeed the the the as expiation of options prescribed recommended act, 101 for certain sins. While some scholars view that those steps pointed towards abolition, and
injunction
law102, Islamic be today therefore others submit under considered as abolished slavery should humane by Islam instance, Tabandeh taken For those steps the contrary. acknowledged while towards slaves, he still argued that "should the legal condition for the enslavement of anyone 96See page 50 above. 97See Q49: 13. 98The second Caliph, Umar is reported to have summoned one of his governors whose son assaulted a subject. Umar reproached the governor saying: "Do you want to enslave people when their mothers have given birth to them as free individuals? " See e.g. Uthman, M. F., (1402AH/1982CE) supra, note 32 above p. 8. 99Seee.g. Q 2: 177, Q9: 60, Q 4: 92, Q 24: 33, Q 90: 13, Q 58: 3. 10°See e.g. Maududi, (1993) supra, note 43 above, p. 20. 101See e.g. Q4: 92 and Q58: 3. 102See e.g. Malekian, F., The Concept of Islamic International Criminal Law: A Comparative Study (1994) pp-83-89; and al-Zuhayli, W., (1997) supra, note 33 above, Vol. 3, pp. 2019-20.
53
Islam would be bound to recognise such slavery as legal, even though 103 ". freeing An-Na'im has argued against that opinion, of the person... recommending the
be proven...
but also made reference to the continual existence of rules on slavery in the traditional books of Islamic jurisprudence and asserted that this is a fundamental human rights issue for 104 in is law. Islamic Muslims until slavery abolished It is clear to see however that the rules in the traditional books of Islamic jurisprudence do not sanction or advocate slavery, they are mostly in respect of manumission and other in the treatment of slaves. Those rules regulating the affairs of slaves rules ameliorating found in traditional Islamic jurisprudence must thus be viewed inter-temporally.
The
isolation in have been of the prevailing social solved radically could not problem of slavery had, hand, due While Islam the to that on one endured practice of period. circumstances social factors of that period, it simultaneously promoted its gradual abolition on the other. Today most Muslim countries have ratified international instruments abolishing slavery or formally Muslim country will admit the practice of slavery. practices, and no slavery-like There is thus general consensus in Muslim States today against slavery. This can be adopted into a legal consensus (ijmd ) on its abolition in Islamic law. #mä'
(legal consensus)
in law the absence of a direct text of the Qur'an or the Sunnah a strong source of constitutes is ` issue. It i that traditionally, appreciated mä was restricted to the consensus of the on any legists (mujtahidün), meaning traditional Islamic theologians. 105That view is considered too for because international legal and policycontemporary needs, contemporary restrictive 106 beyond involve complex techniques and considerations such restrictive consensus. making There can be no higher consensus on the abolition of slavery than this State practice of all Muslim States, none of which will officially sanction the practice of slavery today within its jurisdiction. This is strengthened by the fact that slavery contradicts the great emphasis laid by Islam on serving God alone as earlier addressed.107All human beings are referred to as servants or slaves (ibäd) of God and can thus not be the slaves of other human beings at the doctrine Thus the time. of the overall objective of the Shari `ah same
(magäsid al-
Shari'ah)108 strongly supports the consensus on the total abolition of slavery under Islamic law. ' 09 103Tabandeh, S., Muslim Commentary on the Universal Declaration of Human Rights (1970) p. 27. 104An-Na'im, A.. A., Towards An Islamic Reformation, (1990) p. 172-175.
105Seeal-Amidi, S.A., al-Ihkdmfi Usül al-Ahkäm (Arabic) (1402AH), Vol.!., p.196 and 226, See also Karnali, M. H., (1991) sra, note 37 above,pp. 168-194,particularly p. 173. 106See AbuSulayman, A. A. (1993), supra, note 20 above, p. 86. 107See p. 52-53 above. 108See page 62 below. 109See generally, B. K. Freamon, "Slavery, Freedom, and the Doctrine of Consensus in Islamic Jurisprudence", (1998) 11
54
LANGUAGE
OF RIGHTS
IN ISLAMIC
LAW
The Shari `ah as the primary source of Islamic law provides the textual authority and legitimising
force for human rights principles
in Islamic law. The Shari `ah text may
in following Qur'anic be declarative the verse: as sometimes "0 mankind We created you from a single pair of a male and a female, and made you into nations and tribes that you may know each other. Verily the most honoured of 10 is "' is God in the the sight of one who most righteous. you
This statement expresses the concept of equality of human beings and thus from it arises the general right of equality for all. The text can also be a positive assertion clearly indicating the existence of a right as in the Qur'anic verse: "... And women shall have rights similar to "' imperative is however Shari 'ah language ". The texts them an often the rights against of ... injunction in form of prescription or prohibition imposing positive or negative obligations on hand. For the hand, other example the array of rights on an conferring correlatively and one Qur'an provides that: "... Take not life, which God has made sacred except by way of justice 112 it from is duty life injunction From take ". there to law... this arbitrarily, and a not and injunction from Qur'anic life for Also that the to the every person. right correlative arises 113 " have houses there asked permission... other than your own until you says: ".... Enter not is a duty not to intrude into other person's privacy, and from it arises the correlative right to for every person. privacy The greater use of imperative injunctions in the Islamic legal sources is often argued as 114 in law. Such argument can be Islamic indicating the notion of duties and not that of rights justifiable only from a one-sided interpretation of the injunctions. It is easy to understand that impose injunctions the obligations on one part they at the same time convey rights on while the other part as correlates of the duties they impose. The injunctions are legal rulings that language duties Expressing duties through the of may rights. rights corresponding and create be a charateristic of Islamic law but it is not peculiar to it. One observes that even the language of international human rights instruments is not couched exclusively in terms of "right to". The language of duties in form of imperative injunctions - "No one shall be" is Harvard Human Rights Journal, p. 1; and also Hassan, R., "On Human Rights and the Qur'anic Perspective" in Swidler, A, (ed.) Human Rights in Religious Traditions (1982)p. 51 at 58-59.
110Q 49: 13. "1 Q 2:228. 112Q 6: 151 See also Q17: 33113Q24: 27. 114See e.g. Donnelly, J., "Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights" (1982) 76 American Political Science Review, No. 2, p. 303 at 306.
55
international in human rights documents. For example while the the also used nearly all European Convention provides in its Article 8(1) that "Everyone has the right to respect for his private and family life, his home and correspondence", the ICCPR provides for the same in imperative injunction its Article 17(1) through that "No one shall be subjected to an right arbitrary or unlawful interference with his privacy, family, home or correspondence... ". It instruments international human be that the nearly all rights express the observed will also very important and fundamental right to freedom from torture in form of an imperative injunction - "No one shall be subjected to torture... "115 Expressing human rights either in the language of rights or that of duties is like presenting a coin from either of its two sides. Each of the two sides of a coin is indispensable to render it a legal tender. The same applies to human rights, because they are claim-rights, they can not exist without a correlative 116It is it is duty. human that the expression negative sometimes also argued of or positive is in language This the that them of rights renders claimable. not necessarily rights positively denied The the to claim arises only when rights are or violated. need rights so.
Therefore
in language duties the the of a claim can still be brought in rights are expressed even where form of an action for restraint in case of violation and for performance in case of denial, for human Thus that avenues making such claims are available. whether rights are provided in language for in language the the ruled, the of or rights of obligations upon rulers expressed it is only a matter of form and not of substance. In fact no human right can be practically it is first understood as an obligation. If human rights are viewed through a operative except basis be duty dichotomy the they sustained on of right of rights alone. cannot and strict Imagining that human rights are argued monolingually with no notion of duty brought into it human States then that argue since rights are concerned only with rights and not could at all, at all with duties then there is no obligation of duty upon them to respect those rights. Human rights would certainly become empty rights in such situation. Illustrated alternatively, if the concepts of duty and right operated separately, the of duties will
automatically guarantee rights but claiming of rights does not non-fulfilment Conversely, the automatically guarantee rights. of duties automatically denies
fulfilment
rights but the non-claiming
of rights makes no difference. This indicates the necessary
correlation of rights and duties and even the importance of duties for the guarantee of rights. Understanding human rights in the context of duties "does not affect the basic premise of the human rights idea" in any way, it rather instils into it a notion of responsibility that enhances 115See Art. 3 ECPHR; Art. 7 ICCPR; Art. 5(2) ACHR; Art. 5 ACHPR says "... torture... shall be prohibited ". 116See e.g. Jones, P., Rights (1994) p. 14-15.
56
.
' 17 between difference the is Conceptually, thus there for the no practical concept. respect 18 have houses and than permission"' "Enter asked you until your own other not expression 19 "' Whatever his home... (and) family his for has to "Everyone the right private and respect difference may be associated with them is merely semantic and theoretic.
Muslim scholars
imperative law through identify Islamic jurists many that thus confers an array of rights and 120 injunctions of the Qur'an and the Sunnah. The existence of rights is itself only one aspect of ensuring human rights, the other is is State, the and important of ensuring the obligation major which upon aspect equally itself It in dual has that State The respect must respect. obligation a protecting the rights. human rights by, for instance, not using its powers to violate the rights of any person. It also individuals dignity human within the amongst has a further obligation of ensuring respect of human horizontal both is, it rights. of observation That and a vertical must ensure society. facilitate important is the to State the the has that means thus observed rightly most Zaidan 121 law. The Islamic Islamic do duty it has to human so under a rights, and enjoyment of imposed jurists by formulated thus the (siyäsah also early shar'iyyah) governmental policy human State, the of protection and the promotion which ensures some obligations upon 122 below. rights, as shown
THE STATE AND THE ENFORCEMENT
OF HUMAN
RIGHTS
IN ISLAMIC
LAW
importance State institution the Shari'ah the of and The scope of the of recognises justice, duties the the Qur'anic to of of administration regulations relating governance. international law humanity, relations, and of maintenance welfare of order, public ensuring Thus State implemented be the authority. or governmental power of a without e.t. c., cannot is State that the "God the not achieved through which that: of authority the maxim achieves 123 importance jurists by Islamic the indicates This Qur'an". the of recognition through the law. However, in implementation State the sovereignty of or enforcement of the authority of in Islamic law is seen as belonging to God, so the State is established on the basis of "' See e.g. Burgers, H. J., "The Function of Human Rights as Individual and Collective Rights" in Berting, J., et al (eds) Human Rights in a Pluralistic World, Individuals and Collectivities (1990) p. 63 at 68.
118Q 24:27. 119Art. 8(1) EuropeanConvention. 120See e.g. Chaudhry, M. S., Islam's Charter of Fundamental Rights and Civil Liberties (1995). 121See Zaidan, A. K., Individual and the State in Islamic Law (1982) p. 16-17.
122Seee.g. Weeramantry,C.G., Islamic Jurisprudence : An International Perspective(1988), p. 120 and Karnali, M. H., "Siydsah Shar`iyahor the Policies of Islamic Government(1989) 6 TheAmerican Journal of Islamic Social Sciences,No. 1, 59-80. 123Seee.g. Zaydän,A. K., al-Fard wa al-Dawlahfi al-Shari'ah al-Islämiyyah, (Arabic) (1970) p. 12.This maxim is ascribed
57
representation (khiläfah). To prevent abuse of State authority, Islamic law defines the purpose for which the State or the institution of governance is established. The main purpose of the State under Islamic law, as defined by the early Islamic jurists, is to enforce the principles of Sharl'ah in a manner that ensures the well being of humanity.
The individual
human being is a very important aspect of it, and the fullest "enjoyment of his rights is 124 for be State. The Islamic State the greatest safeguard the survival" of the considered to does not exist merely to maintain law and order, or to protect its territory. Its viability depends also upon its ability to achieve social justice, promote public good and balance the relationship between individuals, society and government. Government must not become individual freedom must not threaten the interest of society nor vice versa. It is absolute and the duty of the State to enhance human dignity and alleviate conditions that hinder the 125 human rights. guarantee of Manifestations
of human rights observance in the early Islamic
State are well
documented in the leadership chronicles of Prophet Muhammad and the rightly guided Caliphs after him. The protection of rights as a duty of the State was reflected, for example, in the inaugural speech of the first Caliph, Abu Bakr, in which he was reported to have stated, inter alia, "0 Men! Here I have been assigned the job of being a ruler over you while I am not the best among you. If I do well in my job, help me. If I do wrong, redress me.... The weak shall be strong in my eyes until I restore to them their lost rights, and the strong shall be weak in my eye until I have restored the rights of the weak from them... Obey me as long as I obey God and His Prophet. But if I disobey God's command or His Prophet's, then no obedience is incumbent upon you... "126
The Caliph appointed governors who ruled and performed all functions of State over their respective provinces, but they were directly responsible to the Caliph for any violations of public law or people's rights. For example the forth Caliph, Ali ibn Abi Tälib is recorded to have advised Malik ibn Ashtar when he appointed the later as a governor to Egypt in the following words: "... know Malik, that I am sending you as a governor to a country which had seen many governments before,... you must be kind compassionate and love your subjects,... you must never forget that if you are a ruler over them, then the Caliph is 127 God is Supreme Lord the Caliph... ". the a ruler over you and over to Uthmän, the 3rd Caliph of the early Islamic State in Medina. 124See Weeramantry, C. G., (1988) supra, note 122 above, p. 120. 125See Said, A. A., "Precepts and Practice of Human Rights in Islam" (1979) 1 Universal Human Rights, No. 1, pp. 68-70. '26 See Haykal, M. H., The Life of Muhammad (1983) pp. 510-511. 127See e.g. Imam Ali Ibn Abu Tälib, Nahjul Balagha, Peak of Eloquence, Trans. Reza, S.A., (1984) Letter No. 53, p. 534.
58
The Caliph could therefore receive petitions from people throughout the Islamic Empire injustice his to or violation of rights. any with respect officers against any governor or The Islamic theory of State traditionally
State that the will, envisaged
due to the
its SharI'ah in discharge the those and thus the obligation under authority, assumed piety of individual will automatically enjoy his guaranteed rights under Islamic law without the need to claim for it. There was an assumption that rulers would always act in the best interests of both the individual
and the community.
The first Islamic State in Medina under the
leadership of Prophet Muhammad is often cited as a model of the Islamic State in which the fulfilment of State obligations under the Sharl'ah guaranteed the enjoyment of human rights legal Islamic it. demand for Human the to the as part of were observed rights need without in his God, Muhammad the ideals. Prophet Being all person combined of a and religious ideal by State He fulfil the those to envisaged practicalised purposes. qualities necessary Islam in which the rights of individuals were neither denied nor violated and wherein existed is four State. individual Reference to the between the the also usually made and no conflict in followed his having largely him that Caliphs precedents respect. after as guided rightly However, later political events that followed demonstrated the need for some control on instance detriment human For State to the alto welfare. of power prevent misuse of rulers Mäwardi had noted that the period of the four Caliphs was a period when "men... willingly by desisted from be truth to the to themselves action wrong mere and guided allowed ... "people Ali, Caliphate towards but that the act unjustly would openly of after admonition", (public) "injustice better the try to of officers and get of each other", and also each other and the oppressive conduct of the haughty increased to such a point that only the most powerful 128 authority and most strict of commands could restrain them". Between 661CE and 850CE during the Umayyad and Abassid dynasties, many political lacuna between State Islamic developments that the manifested a occurred within and social ideals of the law and realities of the time.
Cases of violation of the rights of individuals
became frequent and the judges (gädis) could also not deal effectively with claims against high and powerful officials of State. A complaints tribunal or court of grievances called the in Caliphate instituted by Abässid formally the an effort, inter alia, to ensure a mazälim was individuals. The mazälim tribunal was the rights of practical and effective protection of 128Seee.g. al-Mäwardi, A., Trans. Yate, A., (1996) supra, note 58 abovepp. 117-118.The four Caliphs that assumed leadershipof the Islamic community in order of successionafter Prophet Muhammad (i. e. Abubakr, Umar, Uthmän and Ali) are refereedto by Sunni Muslims as"the rightly guided Caliphs". This is from the belief that being very close companionsof the Prophetduring his lifetime and also by their level of sincerity of faith and piety, were rightly guided by God during their respectiveCaliphateof the Islamic community. The Prophethad also usedthe phrase"the rightly guided successorsafter me" in one of his Sayings.
59
different from normal Shari'ah courts. The Shari'ah courts are normal everyday judicial tribunal both the that was a matters while mazälim criminal civil and on adjudicated courts special tribunal constituted to, inter alia, consider complaints against public
officers
including the Caliph himself. Complaints were addressed through it for the attention of the Caliph who could personally look into a complaint or appoint an independent person to look into complaints against public officers. The mazälim tribunal sought to safeguard the rights "ensure It State to individuals the government was meant officials. of excesses against of dignitaries did influential by in law that and state the persons of power abuse rule of under first foremost it... (and) due law to their the and was capacity at resisting merely not escape 029 between it into disputes looked the tribunal citizen and state. which an administrative judge instead (sahib Officer" "Complaint's of a al-mazälim) was usually constituted under a (gädi) as in the normal Shari'ah courts and with a "special administrative-cum-constitutional jurisdiction"
to hear petitions and enquire into complaints against officials or agents of the
State.130Tyan has observed that "the mazalim procedure was applied to all torts, caused not individual, but body individual, to by many another administrative a group or an an only means, did "131. It individual to is diverse the only not apply violations victim an when other faulty instances individual, but "the or application of of erroneous subjective right of an of the objective rules of law, either in specific cases or in a general way, such as the bad in foundation the observance of municipal police or negligence administration of a 132 Its jurisdiction by inter-provincial the , governors of any violations and was regulations. 133 it. "were individuals through their corrected" and scrutinised agents against or provinces Although the mazälim tribunal started more or less as the Caliphs' Court, a curia regis of the time, it was ultimately separated from the office of the Caliph and put under the supervision its jurisdiction, justice It Officer (sahib the Complaints the under combined al-mazälim). of 134 of the judge and the power of the sovereign. Karnali traced the origin of the mazälim procedure to the time of Prophet Muhammad Abdullah Ibn have Rashid to adjudicate complaints he to one appointed was reported when 135It institutionalised during formally however Abassid the officials. was against government 129See Karnali, M. H., "Appellate Review and Judicial Independence in Islamic Law", in Mallat, C., Islam and Public Law (1993) p. 49 at 62.
130Seee.g. Qadri, A. A., (1986) supra, note 42 above,pp.488-492 and also Coulson,N. J., A History of Islamic Law (1964)p. 122and 128-129. 131SeeTyan, E., "Judicial Organisation" in Khadduri, M., and Liebesny. H.J., Law in the Middle East (1955) p.235 at 263 (emphasisadded). 132 ibid.
133SeeQadri, (1986) supra, note 42 above,pp.488-492. 134 SeeKarnali, M. H., (1993) supra, note129above. 135ibid. Seealso Qadri, (1986) supra, note 42 above,p.488.
60
in later It the to the the was revived caliphates. on passed procedure after which caliphate from the excesses of military officers and to protect people eighteenth century as an attempt the police and was one of the influences that led to the first proposal in 1879 and the eventual establishment of the Egyptian Constitutional
Court in 1946.136 Although the mazd1im
tribunal would be considered in Western legal perspectives as a domestic administrative tribunal or an Ombudsman, its jurisdiction covered in the light of those times, the purpose for 137 demonstrated The human tribunals procedure are created. mazd1im rights which modern the recognition of a formal complaints system under Islamic law as early as the eighth State had individuals It the the to against violation. rights of protection of ensure century binding decisions to take against public officers and redress any abuse of rights powers against individuals where proved. Around the eleventh century the political and social developments further motivated the Shari'a law " doctrine the the place which rationalised which of public evolution of another 38 "' Governmental policy in Islamic had in fact come to occupy the organisation of the state. leading Islamic legal to the through political scholarship modified was
doctrine called
(legitimate governmental policy) to address the common principles of siyäsah shar'iyyah ideals law between introduce intended doctrine The to of equity some was good government. duty to life the the that the protect public ruler was of overriding on principle of reality and hardin time a strict and may prevent and place particular circumstances of welfare, which 139 Sharä `ah. The need to clearly identify the purposes of the State as line interpretation of the became imperative. thus quite a political entity
The Islamic legal scholars of the eleventh
instituted fulfil identify State to to that the six was entity as a political century were able intellect, i. life, family, religion, property and elimination of e. protection of main purposes, 140These are sometimes also classified as the indispensable aspects (darüriyyät) corruption. jeopardising State by their the of normal as capable non-fulfilment of public welfare, and 141 The political policy of State must therefore be directed essentially to achieve social order. those purposes.
136SeeGibb, H.A.R., and Bowen, H., Islamic Societyand the West(1957) Vol. ], Part 2, p. 130 and generally Hill, E., "Majlis al-Dawla: The Administrative Courts of Egypt and Administrative Law" in Mallat, C., (ed.) (1993) supra, note 129 above,pp.207-228.
137Note that the term "Mazälim" is a derivative of the Arabic verb "Zalama" meaning "treated unjustly" or "tyrannised". The Mazdlim was thus a complaint arena for a person oppressed or tyrannised. 138Coulson, N. J., (1964) supra, note 130 above, p. 129. 139See e.g. Coulson, N. J., Conflicts and Tension in Islamic Jurisprudence (1969) p. 68.
140Seee.g. Ibn Farhün,M., TabsIrdt al-Hukkdni (Arabic) (1937) Vol. 2, p. 133. Seealso Coulson,N.J., "The Stateand the Individual in Islamic Law" (1957) 6 International and ComparativeLaw Quarterly, p.49 at 51. 141SeeKarnali, M. H., (1993) supra, note 29 above,p.362. He indicated that a minority view addsprotection of dignity "ird" to this list of essentialinterests,but the majority view mergeprotection of dignity within the protection of life.
61
According to Ibn Qayyim al-Jawziyyah, a HanbalI jurist of the fourteenth century, this includes all incidental measures that ensures the well-being of the people and removes harm 142 in is found for Shari'ah. This finds if from them even no express authority the such action Shari (magäsid `ah in the the the objective of al-Shari'ah). aloverall principle of support Shätibi, another fourteenth century jurist but of the Mäliki school, emphasised the need to in Shari 'ah into the the application and the overall objective of consideration always put interpretation of the law. This he also identified as "maslahah ". He asserted that the overall 143 beings herenow hereafter. human Shari'ah and was to ensure welfare of objective of the Since what constituted welfare could be so multifarious,
al-Ghazäli gave a hierarchical
benefits (or first level levels. On those the three rights) considered as are classification of indispensable (darüriyyät) which he identified as protection of life, family, property, intellect indispensability be Because they their must not only of mentioned. and religion as earlier Some Muslim be but threats. scholars contemporary any protected against also promoted 144 On level fundamental those the these are considered as second rights. with equate first (häjiyyät). benefits These the to category and consist of supplementary are necessary those things, the neglect of which may cause hardship to life but do not lead to the collapse improvement benefits (tahsiniyyät) level The third those and as are considered of society. 145 life. improve It the things, those same period was within and enhance which of consist (rights humans) in his " "hugüq Adamiyyin first jurist the term of the used al-Mäwardi when legal Islamic theorists Islamic that the were also principles of government146 work on formulating these theories of categorising human welfare into indispensable, necessary and improvement benefits or rights. Although they were not using modern international human human be It they terminologies, concepts. must stated rights were certainly speculating rights however that the right of the individual to judicially challenge the State on the basis of those law. doctrines for Islamic It traditional the of under not specifically provided principles was fulfil State had duty for them. that the to taken a granted was Although the principles of the overall objective of the Shari'ah (magäsid al-Shari'ah) interest (maslahah) to to ensure the continued that are also applicable public of welfare and interpretation it be State, the of will a wrong of those principles to use peaceful existence
142Ibn Qayyim al-Jawziyyah, A. M., al-Turuq al-Hukmiyyah Fl al-Siyäsah al-Shar'iyyah Karnali, M. H., (1991) supra, note 37 above, p. 271.
(Arabic) (1961)p. 16. See also
143Seeal-Shatibi, A. I., al-Muwafagät, (1997), supra, note 82 above,Vol. 2, pp.9 and 300.
144See Karnali, M. H., (1993) supra, note 29 above, p. 362. See also Imärah, M., Islam wa Hugüq al-Insün: Darürät Lä Huqüq (1989). 145See e.g. Kama] i, M. H., (1991) supra, note 37 above, pp. 271-272 and Hallaq, W., (1997), supra, note 37 above, pp. 89-90. 146Seepage 47 above.
62
them as justification
for the gross violation of the rights of individuals on the excuse of
State. despotic The the the of presence of autocratic existence or overall peaceful protecting doctrines have history in Islamic the that utilised of maslahah or siyäsah on wrongly rules the excuse of public interest to deny rights of individuals is not an indication that these doctrines are meant to be so applied. The concept of public interest is actually meant for the benefit of members of the community and not for the sole and personal interest of rulers who interest interest. The concept of public the their as public own personal often consider interest or the community approach in Islamic law does not aim at rendering the individual totally defenceless.
Furthermore, it is also well established in Islamic legal theory that the fundamental difficulties (ii) Shari `ah (i) Removal Realisation the of of welfare are underlying principles 147 justice, human (iii) Realisation are all relevant postulates of universal which of rights. and The State therefore does not come into being as an end in itself but as a vehicle to ensure the jurists identified Islamic humanity. This being why explains as early as the perhaps of well in State important human They the the the protection of of rights. role century eleventh being human beings that the that period well even at early of conscious was quite seemed issue justice. The to the governance and political of good related political much very jurists identified demanded State by justice that the the were elements as political purposes of dignity human for beings. State They the the the the of are purposes of protection of part on that impose both negative and positive duties on the State and precursors to the protection of human rights. This brings us back to the issue of government accountability and the right of the people to challenge the abuse of authority and also demand redress for violation of rights 148 raised earlier above. The Qur'anic verse that says: "0 you believers! Obey God and obey the Apostle and the 149 is often cited as evidence of absolutism of authority " holders of authority amongst you... in Islamic law. So also is a Tradition of the Prophet Muhammad in which he is reported to have said "Obedience to me is obedience to God and obedience to the leader is obedience to is God is leader Rebellion the against and rebellion me rebellion against rebellion against me; 150 against me". While it is true that the Islamic theory of State tended to have centred all authority in the
147See e.g. Qadri, (1986) supra, note 42 above, p. 18 and Philips, A. A. B., The Evolution ofFigh, (1996) pp. 14-37. 148Seepage 51 above. 149
Q 4:59.
150Reported by al-BukhärI and Muslim. See e.g. Fazlul Karim, A. M., Al-Hadis: An English Translation and Commentary Vol.. 3rd 2, (1994), Text, Arabic Mishkat-ul-Masabih ed., pp. 573-574, Hadith No. 15. with of
63
Caliph on the assumption that he will act in the best interests of the people, yet the Caliph was not considered to be above the law.
Siegman observed that "the early theory of the
Caliphate provided for a "restrained" absolutism, for it contained both legal and moral restrictions to the ruler's arbitrariness. " The Caliph, he continued, "was subject to the Law (h)owever, in the absence of specific procedures and institutions like any ordinary Muslim ... for the removal of an "illegal" ruler, the restraints conceived by the jurists proved 15' The concluding part of that Qur'anic verse on obedience to authority actually worthless". instructs that "... and if you dispute on any affair, refer such to God and to the Apostle if you do believe in God and the Last Day; that is the best and most suitable for the final 152 determination". That thus indicate that the order of obedience was by virtue of those in authority ruling according to the rules of the Shari'ah itself.
There is therefore no duty of
obedience in violation of the Shari `ah. It was the "fear and abhorrence of civil discord and fitna (strife)" that led the Islamic theologians and philosophers from the eleventh century onwards to adopt such views as: "Sixty years of tyranny are better than one hour of civil "An doing (ruler), barbarous (who) that evil and and sultan can only with difficulty strife"153, be deposed and (who) the attempt to depose would create unendurable strife, must of ... ' 54 in be left him... be ". The general rule to possession and obedience must rendered necessity however is that people have a right under Islamic law to challenge the abuse of power by 155 is known in "naqd " Islamic law. This It is a fundamental Islamic as al-hakim rulers. individuals that to truthfully entitles principle political
criticise and expose violations of
ruling authorities even when this entails opposing the government. Individuals could also demand for redress. Taking further, this right forms part of the broader principle
of
maintaining social order (hisbah) and may thus be interpreted also as a "right of God" which thereby imposes a duty of challenging abuse of governmental authority. Karnali quoting Khidr Husayn has observed that: "Islam made it an obligation of the head his to the the monitor conduct of of state and community officials with a view to deviate, those who and alerting those who might be neglecting the duties with rectifying 156 There are many instances of the demonstration of this right by which they are entrusted". individuals during the period of the four rightly guided Caliphs.
The incidence of the lady
151Siegman,H., "The Stateand the Individual in Sunni Islam" (1964) 54 TheMuslim World p. 14 at15. 152Q 4: 59. 153SeeCoulson,N.J., (1957) supra, note 140 aboveat p.56.
154al-Ghazäli, A. M., Ihyä' 'Ulüm al-Din, Vol. II, (Arabic), p. 124, English Trans. cited in Lambton, A. K. S., State and Government in Medieval Islam, (1981), p. 116-117. 155See Karnali, M. H., Freedom of Expression in Islam, (1997), p. 49. 156See Husayn M. H., Naqd Kitäb al-Islam wa Usül al-Hukm (Arabic) (1925) 89 p. quoted by Kama] i, M. H. (1997) ibid, p. 52.
64
is here. Also, declaration Umar the of cited earlier above still relevant against who protested the inaugural address of the first Caliph Abubakr in which he encouraged the people to 157 is indication an of this right. correct him whenever he goes wrong
As observedby Seigman no specific procedural rules and institutions existed for the Caliphate, but in barbaric the theory the the traditional of same was not rulers of removal for bringing true complaints on violation of rights against the ruling authorities. completely The mazälim institution earlier discussed158was meant to, inter alia, serve the later purpose. Whether the mazälim was an effective institution for that purpose is a very relative and independent be it have been While as sophisticated or as would may not subjective question. for institution human the for twenty-first enforcement of an of notion a century expected it institution for that fact the that the and was established was recognised need such an rights, both in human history Islam in the theory and the the rights concept of of confirms so early law. Islamic practice of
BALANCE
BETWEEN PUBLIC ORDER AND INDIVIDUAL
RIGHTS
It is often argued that the material aim of Islamic law is public or societal regulation and thus it contradicts the individualistic nature of human rights. Islam views human dignity as a important is itself in thus the an considered of virtue aspect of and promotion virtue (public doctrine hisbah dignity. legal human The Islamic order or societal of enhancing vigilance) enjoins the promotion of virtues and prohibition
of vices (amr bi al-ma `rüf wa
individual is both State. It the the and a social placed on responsibility al-munkar). an nahy Under Islamic law the Shari `ah indicates necessary virtues that must prevail in human The Qur'anic terminology for virtue in that regard is ma `rüf which literally means society. "well known" or "universally accepted". Virtue as dictated by the Shari'ah is thus projected as a universally
recognisable value. Maududi
has argued in that regard that human
in favour "uniform being has of certain moral qualities sort of verdict as some conscience '59 in her bad". declared Renteln expressed a similar view crossothers as also and good 160 by human rights maintaining that values exist which all cultures share. cultural study on Although any individual has the free will either to enhance his inherent dignity or to debase it, the State also has a duty under Islamic law to ensure that no individual debases himself in 157See Kama] i, M. H., (1997) ibid., pp. 49-57 for further examples. 158See p. 59-61 above.
'59SeeMaududi, A. A. Islamic Wayof Life (1980) pp.25-28.
160See Renteln, R. D., International Human Rights: Universalism Versus Relativism (1990) p. 86.
65
in itself State dignity The human tarnishes that not act a manner generally. must a manner that violates the dignity of any one. The Shari `ah thus aims at preserving and enhancing human dignity through a balance between liberty of the individual
on one hand and
balance, This the the on other. where properly maintained, general social order protection of have individual defence that may negative consequences on rights of prevents an unqualified between liberties large. balance The to individuals and social need at on society and other in its for by Action Council161 Inter been has the proposal a reiterated responsibilities "Universal Declaration of Human Responsibilities" submitted to the UN in 1997 as follows:
"Without a proper balance, unrestricted freedom is as dangerous as imposed social freedom have from injustices Great extreme economic resulted social responsibility. basic time the of people's same cruel oppression at and capitalist greed, while liberties has been justified in the name of society's interests or communist ideals. Either extreme is undesirable. At present, with the disappearance of the East-West desired balance humankind War, Cold to the the the closer seems of end conflict and between freedom and responsibility. We have struggled for freedom and rights. It is 99162 human foster to time obligations. and responsibility now
The Shari `ah should therefore not be interpreted as being anti-individual
or de-
individual individual. It the the the the above neither over-stresses of position emphasising One observes that the legal texts which assert State nor the State above the individual. human dignity and prohibit its violation, both in the Qur'an and the Sunnah, are almost individual. legal Islamic in to formulated terms that to the rules apply every refer always individual as much as it applies to the whole community. One reads Qur'anic verses such as: "We have indeed created Man in the best of mouldss163;"... if anyone slew a person unless it be for murder or for spreading mischief on the land, it would be as if he slew the whole life if it be he life, if the the of whole saved saved would as anyone a and people; 164All these and similar expressions aim at the individual human being (Man, a 9,. people.. . isolated but is however individual The life). entity as part and addressed as an not person, a is from fact be This the that actually made up of a explained society may parcel of society. State, individuals. they are not material entities, are community and society of collection 161"The Inter Action Council consists of about 25 former heads of state and government who have been addressing longterm global issues. The members (who endorsed the proposed Declaration) included Schmidt (Germany), Lord Callaghan of Cardiff (UK), Jimmy Carter (United States), and other former heads of state from such countries as Australia, Brazil, Costa Rica, Cyprus, Israel, Japan, Lebanon, Singapore, Thailand, and Zambia. The Council submitted the proposed Declaration to the UN Secretary General for consideration for its proclamation by the UN General Assembly as a `common standard for all Politics P., International H., Alston, Human Steiner, Rights (2"a See Context: Morals Law in and nations'. and all peoples Ed. 2000) p. 351. See the Inter Action Council Website at: http: //www. asiawidc. or. ip/iac/UDHR/EngDeci l. htm [15/2/2001]. 162Kung, H., and Schmidt, H., (ed. ) Global Ethic and Global Responsibilities (1988) p. 6. 163Q 95: 4. 164Q 5: 32.
66
individuals. but lifted nothing reveals when social veils which
Thus while acknowledging
that one of the material aims of Islamic law is societal regulation, Schacht has cautioned that this should not obscure the important fact that "(t)he formal structure of Islamic law is individualist. "165 While individualism is an important aspect of human rights it is not the whole of it. Stressing individualism in international human rights often tends to portray that human rights totally segregates the individual from society.
This is not so. Human rights promote and
individual but being human the only as an sometimes as a member of a of a not rights protect does individual State. It the the the not actually set of aside excessive powers against group from, nor place him totally above society. It only guarantees that his rights are not infringed through excessive use of State power. He is not an isolated individual but still part and parcel 166 instance, free full development for UDHR Thus that the the the recognises and society. of is possible only within a community and thus the 167 Similar appreciation is expressed in the duties individual has to that community. 168, Duties Man Rights Declaration the American Convention on American of of the and 170 Human Peoples Rights. African Charter Human Rights169and the of and individual the the of personality of
The essence of human rights does not really lie in individualism humanitarianism.
but rather in its
Human rights today protect both individuals and collectives. The right of
international important human is today right provided under collective an self-determination human rights law. Judge Weeramantry has drawn attention to some important facts in the history of international human rights that clearly demonstrate the need to appreciate a more individualistic human He humanitarian than totally view of rather a rights. noted and rounded that: "On the eve of the fifth session of the General Assembly, in November 1950, a by brought before Committee Third the representatives of the proposal was Afghanistan and Saudi Arabia that the Human Rights Committee study in depth the problem of the right of peoples and nations to self-determination. The Saudi Arabian delegate drew attention to the fact, which Western proponents of human rights chose simply to ignore, that in the absence of an article containing the right to selfdetermination, colonial and mandatory powers would be merely encouraged to postpone indefinitely the establishment of equal rights among all nations. "
165See Schacht, J., "Islamic Law in Contemporary States" (1959) 8 American Journal of Contemporary Law, 133 at 138140.
" Seegenerally Donnelly, J., "Human Rights and WesternLiberalism" in An-Nairn, A. A. and Deng, F.M., (eds.) Human Rights in Africa, Cultural Perspectives(1990) pp.31 at 35; and Bielefeldt, (1995) supra, note 27 above,p.591-2. 167See Art. 29(1) UDHR (1948). 168See Art. 29. 169See Art. 32. 170See generally Chapter II of ACHPR.
67
The learned judge thus concluded that: "With the accumulated wisdom of the many years that have passed since then, we see how important this view has been to the future development of human rights. The have its importance feature to that this to stage and stressed at early pinpoint ability delegates in doubt the mentioned to the more rounded view of attributable was no human rights in their totality, which had been inculcated in them by the perspectives be When jurisprudence. to to the Islamic right self-determination came eventually of included in both Covenants (on Civil and Political Rights and Economic, Social and Cultural Rights) and became axiomatic, the countries of the Third World had taken human rights far beyond their traditional Western formulation. The contribution of the Islamic nations to this result was considerable and it is indeed the reverse of the truth for Western jurists to suggest that there was no doctrine of human rights in Islamic jurisprudence. In fact the Islamic concepts took the doctrine of human rights by formulation Western beyond their reason of the more rounded and well law""` Islamic of community-oriented attitudes
Viewed from these perspectives the balance that Islamic law maintains between the individual and the State does not constitute an irreconcilable deviation from international human rights principles as is often portrayed by many writers on the subject.
CODIFICATION
OF HUMAN
RIGHTS
UNDER ISLAMIC
LAW
As earlier observed, the founding jurists of Islamic law only addressed human rights issues within the general framework of rights and duties under the Shari `ah without specific law. human Islamic The list to the rights under of nearest of categorisation or codification indispensable the the or six purposes of governance otherwise called such an endeavour was 172 jurists. The Qur'an was in the writings of some early fundamental human rights listed duties both from the were generally established. rights and which taken as general reference The Sunnah also played a supplementary role in that respect. The case of the lady who Qur'an by declaration Umar to the the verse of a was an of reference protested against 173However, it is important to observe here that there is no lack of a example of such practice. At beginning in history State. Islamic in the the the of very of constitutionalism precedent important document Muhammad in Prophet State Medina, Islamic the enacted an the nascent that has come to be known as the "Constitution of Medina", which clearly defined certain basic rights and duties of members of the community and some important fundamental 174 by be From State to that the easily referred all members could of community. of principles 171See Weeramantry, C. G., (1988) supra, note 122 above, p. 126. 172See page 62 above.
"; Seepage49 above.
174See e.g. Hamidullah, M., The First Written Constitution in the World (1981); and also Watt, W. M., Islamic Political
68
is importance for law of utmost perspective, codification a modern constitutional and positive a clear identification
faced duties. Thus the with the modern of rights and content of
human demonstrate human international the to of accommodation and rights challenges of have dispensation Islamic there recently emerged some codification of rights within an Islamic human rights principles from the Muslim world. The Universal Islamic Declaration of Human Rights (UIDHR) was issued in September 1981 under the auspices of the Islamic Council of London and presented to United Nations 175 The preamble of the (UNESCO). Organisation Cultural Educational, Scientific and Declaration refers to the Qur'an and Sunnah as the source of its rights and that "the human honour on mankind and dignity Law by Divine decreed the and at conferring aim rights designed to eliminate oppression and injustice". It also states that the rights can not be by The disregarded, the rights proclaimed or alienated. surrendered curtailed, abrogated, UIDHR are a mixture of civil, political, economic, social and cultural rights. In August 1990 the Cairo Declaration on Human Rights in Islam was issued after the 176 in Cairo. Cairo (OIC) The Conference Organisation Islamic the of of nineteenth meeting Declaration bears more governmental authority having being adopted by an Organisation by foreign Member States, the Muslim the ministers of endorsed and constituted of sovereign States. In its Resolution adopting the Declaration, the OIC stated that the Declaration "will 177 in field human The Cairo for States Member the rights". of serve as a general guidance Declaration was also presented by the OIC to the 2°d International World Conference on human Muslim States in in 1993 the Vienna Rights of on consensus Human as representing 178 In its preamble the Member States of the OIC indicated their wish to "contribute to rights. from human to to exploitation and man protect assert rights, the efforts of mankind life in dignified his freedom the to to accordance with a and right affirm and persecution, Islamic Shari `ah." They also stated their belief that fundamental rights and universal freedoms are an integral part of the Islamic religion and that no one has the right to suspend, is declaration binding divine The because ignore their them also a origin. of violate or mixture of civil, political, economic, social and cultural rights. Thought,(1980) pp.130-134;and Baderin, M. A., "The Evolution of Islamic Law of Nations and the Modem International Order: Universal Peacethrough Mutuality and Cooperation" (2000) 17 TheAmerican Journal of Islamic Social Sciences, No.2., p.57 at 60-61.
175Islamic Council, Universal Islamic Declaration of Human Rights, 19 September 1981. The Islamic Council is a London based private Islamic Organisation affiliated to the Muslim World League.
16 OIC, Cairo Declarationon Human Rights in Islam, of 5 August, 1990.UN Doc. A/45/5/21797 p. 199.
177Resolution No. 49/19-P on the Cairo Declaration on Human Rights in Islam, reproduced in UN, A Compilation of International Instruments, Vol. II, Regional Instruments, p. 477. "$ UN Doc. A/CONF. 157/PC/62/Add. 18(1993). The OIC Cairo Declaration is listed in the Regional Instruments Volume of the UN's A Compilation of International Instruments, Vol. II, Regional Instruments, p. 478-484.
69
Apart from the above declarations, the Council of the League of Arab States adopted the Arab Charter on Human Rights on 15 September 1994 in Cairo179. The League consists of 180 States. The Member States indicated twenty-two member States, all of which are Muslim in the preamble that the charter was "pursuant to the eternal principles of brotherhood and firmly by Shari'a beings Islamic human the established and were which equality among all 181 The preamble also reaffirmed the principles of the divinely-revealed the other religions". UN Charter, the UN Bill of Rights and the Cairo Declaration on Human Rights in Islam. The Charter Arab by the are also a mixture of civil, political, economic, social and rights covered cultural rights.
SCOPE OF HUMAN
RIGHTS
UNDER ISLAMIC
LAW
The above analysis reveals the recognition of the concept of human rights in Islamic law human Islamic by States Muslim to the assert an notion of and organisations attempt and also rights.
The scope of human rights under Islamic law is however not absolute. Since the
Shari `ah is the legalising source of both Islamic morals and law, the scope of human rights in Islamic law is generally delimited by the injunctions of the Shari `ah.
The Shari `ah is
in in Declarations Human Rights factor Islamic limiting the two on as well as mentioned as a Sunnah divine Qur'an its In the the Charter. to to Arab and as source the addition reference it "such limitations in UIDHR the to its the the rights guarantees subjects preamble, rights of "the 1(b) by Law", that: the the notes provides of explanatory and paragraph as are enjoined from derived Qur'an i. Shari `ah, denotes the the totality Law ordinances and the of term e. Sunnah and any other laws that are deduced from these two sources by methods considered jurisprudence". in Islamic valid
The OIC Cairo Declaration also provides in its Article 24
that "All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari'ah. "
While the Arab Charter seems to emphasise Arab nationalism and does not
it its Shari in Shari `ah, Islamic `ah to the the mentions of provisions specifically subject any its preamble. Its Article 4(a) also allows restriction on the rights and freedoms it provides "where such is provided by law and deemed necessary to protect the national security and freedoms health Although the the or morals or rights and of others". order, economy, public "'See a reproduction of the Arab Charter on Human Rights (1994) in: (1997) 18 Human Rights Law Journal, No. 1-4, pp151-153.
}0 Algeria, Bahrain, Comoros, Djibouti, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya Arab Jamahariya, Mauritania, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Somalia, Sudan, Syrian Arab Republic, Tunisia, United Arab Emirates and Yemen. 181See 2ndPreambular paragraph of the Arab Charter on Human Rights (1994) supra, note 179 above.
70
Arab Charter does not give a definition of law, it could be argued that where Islamic law is it be brought freedoms States Member the law the guarantees will rights and the of any of Article 4(a). Furthermore, the law Islamic the through since of the provisions scope of within Shari 'ah determines both morality and legality in Islamic law, the countries in which morals be Shari 'ah to in the the determined may able subject of provisions with accordance are deemed Shari 'ah limits to the the to the as necessary of the charter of provisions some of protect morals. Two
important
from deducible points are
these formulations.
The first
is a
demonstration of the Muslim worlds' appreciation of an Islamic concept of human rights and in be in law human Islamic is the that must their rights of scope the second conviction OIC Cairo Declaration UIDHR both the 'ah. While Shari the the are and conformity with but is Charter Arab that the the as specific still reflects not second point, on emphatic has Shari 'ah human the the Placing the confines of within rights scope of conviction. ' 82 human This will be so down the size of rights. however been strongly criticised as cutting from the perspective of international human rights law being interpreted in purely secular language without consideration for any religious compliance or from the Shari 'ah being interpreted in a very restrictive and hard-line manner without consideration for its 183 Although the Shari 'ah, like every legal system contains provisions humanitarian nature. the the general welfare of society, order and public of morality, maintenance at aimed usually limitations that human the are exceptions must not such rights, scope of which may restrict be over-emphasised to overshadow the general rule of permissibility evidenced by verses of in for does He facility intends to "God Qur'an not want put you, you every the such as: 184 in heavens Has has "God the things to on difficulties" and earth and all you subjected and 185 both ". Facility in flow bounties to His seen and unseen... measure, exceeding you made law in important Islamic is difficulties the thus of applicable even rule an of and prevention limitation. Shari 'ah the rules of exceptional application of Confining human rights within the scope of the Shari 'ah has raised important questions human international in the rights principle of equality and nonrespect of especially 187 186 inhuman degrading discrimination, and punishments. and the prohibition of cruel, 182Seee.g. Mayer, A. B., (1999) supra, note 13 above,p.63ff. Seealso An-Na'im, A. A., (1990) supra, note 104 above, p. 170ff. 183See Chapter 5 below. 1S4Q2: 185.
185Q31:20. 186Seee.g. An-Na'im, A. A., (1990) supra, note 104above,p. 175-7.
187See e.g., "Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading treatment or Punishment", in An-Na'im, A. A., (ed. ) Human Rights in Cross-Cultural
71
While the question of equality and non-discrimination
will be examined especially under
Articles 2(1), 3 and 26 of the ICCPR in Chapter 6.188we will address the question of Islamic criminal punishment here due to its topical nature in relation to international human rights law. The severity of some of the criminal punishments under Islamic law has raised the of torture, cruel, inhuman or degrading 189 international human law. Bannerman has stated for treatment or punishment under rights question of their consistency with the prohibition
example that "it would be foolish to deny that in Western eyes today, amputations, 190 brutal". Mayer has also observed that executions, stoning, and corporal punishment are "laws imposing penalties like amputations, cross amputations, and crucifixions would seem 191 in (of be Article ICCPR)". 7 We will now examine the the to obvious violation of arguments dialogically from the perspectives of both Islamic law and international human rights law.
ISLAMIC CRIMINAL PUNISHMENTS AND INTERNATIONAL HUMAN RIGHTS LAW Criminal
justice
is an important
aspect of public
law. It is distributed
by the State to
maintain both public and private security within the State. The criminal jurisdiction of a State is thus generally not restricted to its nationals only but may extend also to foreign nationals its laws. Normally, determination the of what constitutes criminal offences in a who violate State and the prescription of sanctions and punishments for them are not the particular international law but of are within concern
the discretion and sovereign authority of
individual States. Although there are certain offences common to all civilised nations of the world, the punishments prescribed for them may differ in each State. While sovereign States have the autonomy of prescribing punishments for offences within
their jurisdiction,
international human rights law under the prohibition of torture also prohibits "cruel, inhuman 192 International human rights law also restricts the imposition of degrading" punishments. or the death penalty to the "most serious crimess193,and continues to promote its abolition as a means of the "enhancement of human dignity and progressive development of human Perspectives:A QuestFor Consensus(1992) pp.19-43. 188Referenceis also madeto the principle of equality and non-discrimination in other relevant articles of both the ICCPR and ICESCR in Chapters6 and 7 due to its significance in the enjoyment of human rights generally. 189Seeunder Article 7 of the ICCPR in Chapter6, pp. 125-28below.
190Bannerman, P., (1988) supra, note 4 above p. 26; See also Dudley, J., "Human Rights Practices in the Arab States: The Modern Impact of Shari'a Values" (1982) 12 GA Journal of International and Comparative Law, 55 at 74. 191See Mayer, A. E., "A Critique of An-Na'im's Assessment of Islamic Criminal Justice" in Lindholm, T., and Vogt, K., (eds.) Islamic law Reform and Human Rights: Challenges and Rejoinders (1993) p. 37 at 47.
'92SeeArt. 5 UDHR (1948); Art. 7 ICCPR (1966) and Art. 16 of the Convention Against Torture and Other Cruel, Inhuman or DegradingTreatmentor Punishment(1984) 1465UNTS 85.
72
human Covenants do however define "cruel, inhuman international s194 The rights not rights. or degrading punishment" or "most serious crimes". The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment only defines "torture" and inherent in incidental lawful from, from "pain to or sanctions" suffering arising or excludes 195 definition the of torture. The HRC has however observed in its General Comment 20 to Article 7 of the ICCPR that the prohibition of cruel, inhuman or degrading punishment "must extend to corporal for including "196. This ordered as punishment a crime... excessive chastisement punishment, due State Party to torture that to the that may not amount a criminal sanctions of means by Convention, definition Torture be lawful from the that could still sanctions exclusion of inhuman degrading" by "cruel, HRC to the punishment under the or as amounting considered 197 it involves This could be if ICCPR corporal punishment and excessive chastisement. lack be because the agreement on what punishments of of a universal may problematic deemed "cruel, inhuman or degrading". While it is not impossible, sociological factors may 198 difficult to achieve. actually make a universal standard of criminal punishment quite Also in its General Comment 6 to Article 6 of the ICCPR the HRC observed that: "the be death "most to that the serious crimes" must read restrictively mean penalty expression 199 should be a quite exceptional measure". From the above perspectives punishments under Islamic criminal law provisions have been brought into issue within
international human rights circles. For instance the UN
Special Rapporteur on Sudan in his February 1994 report, had criticised the application of the Islamic law punishments in the Sudan as violating the prohibition
of cruel, inhuman and
degrading punishment under international law. Sudan denied this and argued that it was "an interpretation international instruments human the of rights since they excluded unwarranted from such category all punishments provided for in national legislation. "ZOo Islamic law prescribes fixed punishments called hudüd for certain offences, retributive for discretionary gisäs called other offences and punishments called t `azir for punishments
193SeeArt. 6 ICCPR (1966). 194SeeSecondOptional Protocol to the International Covenanton Civil and Political Rights aiming at the Abolition of the Death Penalty(1989). Seealso Paragraph6 of Human Rights Committee GeneralComment 6 to Art. 6 of ICCPR UN Doc. HRI\GEN\1\Rev.I at 6 (1994). '95 See Art. I Convention Against Torture (1984) supra. 196See UN Doc. HRI\GEN\1\Rev. I at 30 (1994), Par. 5.
197SeeAn-Na'im, A. A., (1992) supra, note 187 above,p. 29.
198See ibid., p. 32 for an illustration of the difficulty that may be encountered in the effort to find a universal standard of criminal punishment. 199See Par. 7. UN Doc. HRI\GEN\1\Rev. l at 6 (1994). 200See UN Doc. E/CN. 4/1994/122.
73
`äzir discretion The the t and are variable punishments and within gisäs of the certain others. victim of the offence (or the heirs) and the judge (or State) respectively. A Muslim State's in international to of standard punishment crimes that attract gisäs or t `azir an conformity law depends international Islamic therefore the on political will and other under punishments international State. The human rights law is tension with considerations of a particular fixed hudüd invariable in the of punishments which are and as long as the respect essentially 201 The hudüd by law. is Islamic fully punishments are established as provided crime law. for Islamic They traditional six offences under are, amputation of a prescribed generally hand for theft (sariqah); 202 death, crucifixion, cross-amputation of the hand and foot or 203 (hirdbah); banishment for rebellion or armed robbery stoning to death for adultery and one 204 for fornication (zinä); hundred lashes eighty lashes for false accusation of unchastity (gadhJ);205death for apostasy (riddah) and forty or eighty lashes for intoxication (sharb al206 While there is consensus among Islamic jurists on the first four punishments, there khamr). intoxication jurists differences The the about of and apostasy. majority offences of are some is it intoxication hadd-type that offence while others' consider a as t `azir-type. Also concede the punishment for intoxication is based on Sunnah, but while the Hanafi, Han ball and Mäliki schools hold that the number of lashes for intoxication is eighty, the Shäfi `ä school forty lashes. hold it be Some Muslim to contemporary schools minority scholars and other jurists also argue that apostasy simpliciter and
is not a hadd-type offence and is not
involves its it death Islamic the acts on own except when of rebellion against with punishable State.207 From the perspective of international human rights law, Mayer has argued that these inconsistent "with human modern modern are penological principles and rights punishments 208There is also the argument that most Muslims who advocate the implementation norms". 201See e.g. El-Awa, M. S., Punishment in Islamic Law, (1982) p. 1. 202See Q 5: 38 which says: "As to the thief, male or female, cut of his of her hand: a punishment by way of example, from God, for their crime... ". 203This punishment is based on Q 5: 33 which says: " The punishment of those who wage war against God and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land... ". 204Q 24: 2 says: "The woman and the man guilty of zinä, flog each of them with a hundred stripes; Let no compassion move believe by God ifyou in God and the last day... ". While Muslim jurists agree that in in their matter prescribed a case, you the term zind covers both adultery and fornication, the punishment prescribed here is applied only to unmarried persons (fornication) while according to the Sunnah the punishment for adultery in the case of married persons (adultery) is stoning to death (rajm). See e.g. Rizvi, S.A. H., et al. "Adultery and Fornication in Islamic Criminal Law: A Debate", in Mahmood, T., et al. (eds.) Criminal Law in Islam and the Muslim World (1996) pp. 223-241 for a debate on the punishment of zinä below. Chapter 8, 314-16 law. See Islamic pp. also under 205Q 24: 4 says: "And those who launch a charge against chaste women and produce not four witnesses (to support their allegations) f og them with eighty stripes... ".
206Seee.g. Safwat, S.M., "Offences and Penaltiesin Islamic Law"(1982) 26 Islamic Quarterly, 169. 207SeeSectionon apostasyin Chapter6, pp. 162-64below. 208See Mayer, A. E., (1993) supra, note191 above, p. 37.
74
in Muslim them hudüd themselves about the are quite ambivalent countries punishments of 209 While Muslim jurists and scholars may not because of the severity of the punishments. inhuman", both "cruel hudüd the the to as and punishments categorisation of subscribe deny law do harshness Islamic the the not of of scholars contemporary and classical is harshness hudüd justification however the Their that the of punishments are punishments. for They deterrent they to the which are offences prescribed. serve as a actually meant and further contend that the standard of proof for all the hudüd offences under Islamic law is very doubt based Tradition beyond be the the they on atom of of any proved must arduous, Prophet in which he said: "Avert the hudüd punishment in case of doubt ... for error in 21° in imposing is better the than which often makes punishment", error clemency implementation of the punishments rare. Commenting on adultery and fornication (zinä) for instance, Shalabi pointed out that the proof required makes the punishment for zinä for the those to openly without any consideration offence who committed applicable only intolerable is impossible in in that and almost any all, and a manner public morality at 211 civilised society. In a similar vein during a Conference in Riyadh, Saudi Arabia in 1972 on "Moslem Doctrine and Human Rights" between delegates of the Saudi Arabian Ministry of Justice and 212 Council from Europe, the delegates a member of the Saudi Arabian delegate Dr. Alof Dawalibi observed as follows:
I never saw, or "I have been in this country (Saudi Arabia) for seven years and ... heard of, any amputation of the hand for stealing. This is because crime is extremely has is its harshness, it So, that that which made of punishment all remains rare. for for live in those who are tranquillity, to and and security perfect all possible tempted to steal, to keep their hands whole. Formerly, when these regions were ruled by the French-inspired Penal Code, under the Ottoman Empire, pilgrims travelling between the two Holy Cities - Mecca and Medina, could not feel secure for their became had But life, this the they their a strong escort. when country unless purse or Saudi Kingdom, the Koranic Law was enforced, crime immediately disappeared. A traveller, then, could journey, not only between the Holy Cities, but even from AlDahran on the Gulf to Jeddah on the Red Sea, and traverse a distance of more than kilometers desert in his five hundred the thousand across all alone private and one fear his life be harbouring it or worry about or property, any worth car, without he foreigner. be ""' dollars, a complete and millions of
209See generally, ibid. pp. 37-60 and Bannerman, P., Islam in Perspective (1988) p. 26. 210See e.g. Al-Zuhayli, Al-Figh al-Islami wa-Adillatuh (Arabic) (1997) Vol. 7., p. 5307. 211Shalabi, M. M., al-Figh al-lslän: iyy Bayn al-Mithäliyyah at-Wdgi 'iyyah (Arabic) (1960) p. 201.
212Comprising of Prof. SeanMacBride, former Presidentof Council of Europe, Prof. Karel Vasak, Prof. Henri Laoust and Maitre Jean-LouisAujol.. 213See Ministry of Justice (ed. ) Conference ofRiyad on Moslem Doctrine and Human Rights in Islam (March 23,1972) p. 8. Saudi Embassy News Website: at http: //www. saudiembassy. net/press release/hr-72. html (2/3/2001).
75
Another delegate also stated that: "In this manner, in the Kingdom of Saudi Arabia, where Islamic Law is enforced, state money is transferred from one town to another, from one bank to another, in an Tell me, ordinary car, without any escort or protection, but the car driver. Gentlemen: in any of your Western States, would you be ready to transfer money from one bank to another, in any of your capitals, without the protection of a strong police force and the necessary number of armoured cars?"214
This confidence in the deterrent nature of the hudüd punishments is just one of its influencing factors within Muslim societies. The most influencing
factor however is the
divine weight of the hudüd punishments since they are injunctions of the Shari `ah. El-Awa has pointed out that while the considerations of social utility form the basis of the theories of
law is in "in Islamic based Western theory the of punishment penal systems, on punishment the belief in the divine revelation contained in the Qur'an and the Sunna of Prophet Muhammad. "215 The hudüd punishments are thus classified as the rights of God (huqüq Allah). They are prescribed as punishment for violating divine injunctions that protect public interest and are therefore not remissible. Al-Mawardi
had pointed out that the hudad are
"deterrent punishments prescribed by God to prevent Men from committing
what He
forbade... "216 For the above reasons Muslim jurists hold that their severity cannot be 217 questioned.
While the needto punish those guilty of crimes is appreciatedunder international human human has been beings law, the that and criminals are still offenders contention and rights dignity. be treated therefore with some must
Thus the punishment for crimes must not be
degrading it inhuman, While the at reforming or must aim offender. severe, excessively Muslims are under a religious obligation to believe in the divine nature of the hudüd be its the said of non-Muslims. same cannot not question severity, and punishments
Since
Muslims Islamic it State to are generally not alone within an restricted punishments criminal becomes necessary to examine the principles of the Islamic criminal punishments outside the divine penology. of strict scope From a pragmatic perspective, the factors that are usually considered in the prescription of punishments for crimes are: the interests of the society, that of the victim and that of the 214ibid. Seealso Mourad, F.A., and al-Sa'aty, H., "Impact of Islamic Penal Law on Crime Situation in SaudiArabia: Findings of A ResearchStudy" in Mahmood, T., et. al. (ed.) Criminal Law in Islam and the Muslim World (1996) p.340-374 for an empirical comparativestudy on the crime situation in Saudi Arabia. 215El-Awa, M. S., (1982) supra, note 201 above,p.xi. 216See al-Mawardi, A., al-Ahkäm al-Sultäniyyah (Arabic) (1386AH). See also the English Translation by Yate, A., The Laws of Islamic Governance (1996).
217Seegenerally, e.g., Ibn a1-Qayyim,I'läm al-Muwagq'In 'An Rabb al- AlamIn (Arabic) (1996), AbO Zahrah, S.M., al-
76
deterrence, based is theories the Thus, retribution of on usually penological policy offender. be deterrence basically be Although viewed as may there some overlapping, may and reform. that the the interest that offender. of and reform victim, the of retribution society, of serving There could indeed be difficulty in defining a balance between these interests in the instance, For for of while a generality offences. particular of punishments prescription is for too that in a severe punishment a particular a particular society may reveal opinion depending in the that on the same society, offence of victims of opinion offence, particular for is too that perpetrators of such offences. severe no punishment their ordeals, might reveal it is their that the must be reform that so too society, of It may products are offenders argued be given priority in the determination of a penal policy. Against this background, El-Awa has pointed out that the hudüd punishment "cares very little for the criminal and his reform, and concentrates on preventing the commission of by interest to is, it the That to "218 wanting prevent, ab society, of priority gives offences. deterrent hadd-type through the and retributive a offences initio, the occurrence of if ideal despite But law the Islamic This that society. at an aims suggests philosophy. deterrent nature of the severe punishments the offences still occur, there would then arise the for has the the commitment of role a contributory played or not society whether of question is hudiid, there in that the the Thus, the also must exist rule of enforcement even the offence. the it be that Where offender was a Islamic product ideal proved reasonably can society. an into be interest his taken then consideration and must the problems sociological society's of Prophet is There the be that hudüd suspended evidence applied. the punishments would not Caliph, Umar, during for hadd the theft the second war, and punishment the enforcement of 219 in El-Awa famine Medina. its time also of widespread enforcement at a suspended jurist, in his famous Hanafi Abu Yüsuf, the great eighth century referred to the account of it indicate to that to Kitäb necessary relax or could make circumstances al-Kharäj220, work 221 be It by hudüd the the authority. could ruling punishment suspend the enforcement of is hudüd Muslims the the to punishment not that of therefore prescription while argued in isolation is however State by its the of other sociological not application questionable, factors within the State. The determination of the enabling or inhibiting sociological factors
Jarimah wa al-'Ugabah fi al-Fiqh al-Islämi (Arabic) (n. d. ).
218El-Awa, M. S., (1982) supra, note 201 abovepp.23-35 and p. 134.
219See e.g. Abü Zahrah, M., Usül al-Fiqh (Arabic) (1958) p. 222 -228 Ibn Qayyim, I'läm al-Muwagq'In Vol. I p. 185. See also Karnali, M. H., Principles of Islamic Jurisprudence (1991) p. 247 and 270.
(Arabic) (1996)
220AbOYüsuf, Y., Kitäb al-Khardj (Arabic) (1352A.H.) pp.149-152.
221El-Awa, (1982) supra, note 201 above, p. 137. See also Qutb, M., Islam the Misunderstood Religion (1978) pp. 165-171.
77
for the application of the hudüd punishment is, as shown by the examples above, left to the discretion of the State to be exercised in good faith. While the hudüd punishment is deterrent in nature for the public interest, the to `zir punishments, due to the wide authority that the State has in its prescription, provide means for punishments that aim for the criminals reform. The gisäs punishments complete the cycle by taking the interest of the victim into consideration in the enforcement of the retributive 222 It be could argued therefore that the three tiers of punishment under Islamic punishment. law
are interpretable
pragmatically
to accommodate modern
penological
principles
depending on the political and humanitarian will of the ruling authority in the Islamic State.
Against the foregoing background, the conflict between criminal punishments under Islamic law and the prohibition
of cruel, inhuman and degrading punishments under
international human rights law can be addressed from two dimensions. The first dimension Since State has discretion under Islamic the the punishment of non-hudüd offences. concerns law to impose less harsh punishments for non-hudüd offences, Muslim States can thus discretion in international human rights law that their cognisance of exercise effectively directly and proscribe their non-hudüd punishments that violate the prohibition obligations, of cruel, inhuman and degrading punishments. It must be observed however that apart from developing factors, for include that nations, reasons many economic limitations, do religious often prefer an effectively
deterrent "harsh"
criminal
punishment over a "humane"
legislative lies the where one even authority completely within the prerogative of reformative the State. The second dimension concerns the hudüd offences, which are specifically prescribed by direct injunctions of the Qur'an. An-Na'im
has observed in respect of the hudüd
"in Muslim that all societies, the possibility of human judgment regarding the punishments appropriateness or cruelty of a punishment decreed by God is simply out of the question", Islamic "(n)either dialogue is likely to lead to that re-interpretation nor cross-cultural and 223 law". Islamic Questioning the hudüd punishments is the(ir) total abolition... as a matter of considered as questioning the divine wisdom underlying them and impugning the divinity of-59 the Qur'an and the theocentric nature of Islamic law. From an Islamic legal perspective the indirectly however be through procedural means. Islamic legalists addressed conflict may it is lawful fact "any to the that utilise strategem which averts the (hudüd) penalty concede
222The victim (or his heir) in Qisäs cases has a mediating role in the punishment of the offender. 223See An-Na'im, A. A., (1992) supra, note 187 above, pp. 35-36. Emphasis added.
78
n
224 hudüd having the Prophet that Law", impugning the the avert one should advised without in imposing is in better because than doubt in error clemency error case of punishment Court had Supreme (as Pakistan Afzal Zullah 225 the Justice then Chief was) of punishment. 226 Ali Ghulam State that: thus observed in The v "an uncontroverted principle of Hudood (is) that not only the maximum benefit of is be but be to doubt the to also effort accused, extended will every reasonable ... by legitimate it be long (as) inflict Hadd the to and all can avoided so made not 227 established means".
Thus even though Muslim States can not, for the divine weight, directly proscribe the hudüd punishments, they can regulate its application through legally valid procedural devices 228 "if that however has the Mayer law. Islamic one attempts such a question raised under fundamentalist it defending does how critics, who are against go about one compromise, likely to accuse one of failing to take divine commands seriously? s229 This question internal dialogue within be issue but through the highlights the volatility of answered can Muslim States and among Muslim groups. It is establishable by reference to classical Islamic jurisprudence that averting hudüd punishments through procedural means does not amount to impugning divine commands. Such aversion does not necessarily mean that there would be lawful but to that through procedural rules of strict and adherence no punishment at all, Islamic law ta'zir punishments are applied instead of the hudüd punishments as highlighted by Chief Justice Zullah above. Although the obligations of State parties under international human rights instruments legislation direct often require
inhuman cruel, and considered abolishing punishments
degrading, such direct legislation can divest a ruling authority of its Islamic legitimacy in-/ injunctions Qur'anic by Muslims The Muslim today. the reverence of world many parts of demand Committee's Muslim States Rights Human to the on thus puts at a cross-roads directly abolish the hudad punishments. With the current resurgence and restoration of Islamic law in many Muslim States, it is more feasible to seek for reconciliation between the hudüd punishments and the prohibition of cruel, inhuman and degrading punishments under 224See Eaton, G., Islam and the Destiny of Man (1994) p. 185.
225Seee.g. Al-Zuhayli, Al-Fiqh al-Islämi wa-Adillatuh (Arabic) (1997) Vol. 7., p.5307. 226(1986) 38 PLD (S.Ct) 741. 227ibid, at 759.
22$See Chapter 8, p. 314 below on how the Islamic Republic of Pakistan has for instance demonstrated this in practice. See for 54-55. And in Libya See Mahmood, T., 191 (1993) the E. A., Mayer, an analysis pp. of above, practice note supra, also "Legal System of Modern Libya: Enforcement of Islamic Penal Laws" in Mahmood, T., et al. (eds.) Criminal Law in Islam E., "Libyan Legislation in Defense of Arabo-Islamic Sexual Mayer, A. 375-388 (1996) World Muslim and pp. the and Mores", in Mahmood, T., ibid., pp. 389-421.
79
international human rights law indirectly through legal procedural shields under Islamic law as is currently demonstrated in the practice of some Muslim States that apply Islamic law as State law.
229See Mayer, E. A., ibid., p. 47.
80
CHAPTER
5
Conceptual Differences in Islamic Law and International Human Rights Law We established the concept of human rights within the themes of Islamic law in the last chapter but identified that this is subjected to the provisions of the Shari `ah, which is international human is interpreted based. Conversely, in a purely law today rights religious secular language influenced by strong notions of Western liberalism and not constrained by any religious
orthodoxy. This creates what has been described as "theocentric"
and
"anthropocentric" differences between Islamic law and international human rights law. ' To is law feared fundamentalism Islamic often as accommodating and a barrier accommodate ' international human liberties by law. the rights offered against
Advocates of Islamic law
also often consider Western liberalism as too permissive and intrusive upon religious ideals and morality.
Thus the issues of "fundamentalism"
and "liberalism"
also raise some
international between human law Islamic and conflicts rights law respectively. conceptual Traditionally,
these conceptual differences have been mostly
addressed from
a
is "either/or" hang There the temptation to often perspective. on to stereotyped monological does those terms, of shut out consideration of any positive which notions negative interrelationship of the concepts in their application to Islamic law and international human In law this chapter we will examine and traverse the traditional arguments respectively. rights differences, those and propose a more accommodative consideration of the conceptual on differences.
THE THEOCENTRIC
VERSUS ANTHROPOCENTRIC
DIFFERENCES
Theocentric means having God as the central point of focus while Anthropocentric being) (i. human having Man e. as the central point of focus. The former is a religious means latter is Based the a secular one. while on religion, Islamic law follows the perspective 'See Brohi, A. K., "Islam and Human Rights", in Gauher, A., The Challenge of Islam (1980) p. 179 and Weeramantry, C. G., Islamic Jurisprudence: An International Perspective (1988) pp. 116-117.
81
theocentric approach and makes direct reference to God as the original granter of human 3 The is instil God-consciousness important to an element of effect and and main rights. law. human Islamic The Islamic in duty to to the rights under commitment respect religiosity human rights can thus be described as both religious and humanitarian.
It is a dual
beings God, horizontal between between human the and and other one vertical relationship, 4 beings human themselves. The vertical relationship is the religious commitment, which when fulfilled
strengthens the horizontal
and humanitarian commitments
International human rights law follows the anthropocentric approach.
Conversely,
It has a secular
is humanitarian God. The direct to that commitment only a one reference makes no approach and has the freedom and liberty
of the individual
human being at heart. Although
international human rights law recognises freedom of religion as a human right6, it does not Human basis for human rights are rather considered as a social rights. as a religion consider 7 by God. indicting A divide from human that granted sharp and and not action arises practice is thus often advocated between the theocentric and anthropocentric perspectives by the champions of each approach. On one hand, there is often the tendency to want to portray the anthropocentric approach incompatible law being human Islamic the totally international with principles of rights as of law. On the other hand, a proposal during the drafting discussions of the UDHR of 1948 to 8 defeated. This raises the question into Declaration iota "theocentricism" the inject an was of human documents in international God to the rights makes them non-reference of whether irreverent and non-binding in Islamic law. In opposing any such suggestion, Riffat Hassan has stated that: "... even though many charters of human rights originating in the Western world do follow direct it does God, that God-centred or to not necessarily reference not make God-related concepts and laws are excluded from them. Reference to God does not does God to necessarily make profane, sacred, nor nonreference make necessarily any human document. To me it seems truly remarkable that an organisation such as ZSeeexamples citedin Chapter2 at p. 22 above.
Seee.g. the Preambleof the OIC Cairo Declaration on Human Rights in Islam (1990); and the Preambleof the Universal Islamic Declaration on Human Rights (1981). ° The horizontal relationship here will include also the relationship betweenthe Stateand the individual becausethe Stateis equally constitutedof individual humanbeings placed in positions of authority as trustees. s See e.g. Weeramantry, C. G., (1988) supra, note 1 above, p. 116-117. 6 See e.g. Art. 18 of the ICCPR. 7 See e.g. Donnelly, J., Universal Human Rights in Theory and Practice,
(1989) pp. 16-19.
'See e.g. Abu-Sahlieh, S.A., `Muslims And Human Rights: Challengesand Perspectives'in Schmale,W., (ed.) Human Rights and Cultural Diversity, (1993) p.239 at 242. Seealso Little, D., Religion- Catalyst or Impediment to International Law? The Caseof Hugo Grotius" (1993) American Society of International Law Proceedings,p. 322 at 323, where it is observedthat "The legislative history of the Universal Declaration, in fact, clearly indicates that the drafters,after considerable controversy, deliberately refrained from including references to a deity... ".
82
the United Nations, where every word of every declaration is fought over in an interest, bloc its by to could arrive at a protect vested each country and attempt document such as the Universal Declaration of Human Rights which, though "secular" in terminology, seems to me to be more "religious" in essence than many `fatwas" given by Muslim and other religious authorities and agencies."9
The reference to "inherent dignity" of human beings in the UDHR represented a is diplomacy feel State language the of as may comfortable, every with which compromise drafting international instruments. While religiously inclined States may perceive the inherent dignity of the human being as emanating from God, States with no religious inclination were it. from they to free the to source choose assign whatever same as emanating view equally However, the conflcit is not really in whether or not direct reference is made to God in human
international
rights
instruments.
into the anthropocentric
theocentric
It rather
in the capacity
lies
and vice versa. The proposition
interpretations present
of international of international
human rights
human rights law as a fait accompli
acceptable in all respects to every culture
a universalism theoretic
validity
presumptive
requiring
that "everything
to fall in line with
Such proposition
law.
of universalism
in (be) order to maintain else adjusted
highly utopian to presume however that Muslim legal Islamic their and moral autonomy of
presumes the
that fully satisfies
and civilisation.
in international
the
of some scholars on this
be Shari `ah the that should reformed every aspect of subject suggests interpretations present
to interpret
human
Often there is a rights
discourse
that assumption. ""
It is
States would want to repudiate every aspect not inclusive
for a universalism
of their religious
sensitivities.
Despite her strong argument
for the UDHR
above, one observes that Riffat
Hassan still
turned round to demonstrate
the theocentric
perspective
life. look at generally human invention
by which
Muslims
She still concluded that human rights were given by God and are not a
and thus she does not, as a Muslim,
"look
for their origin
or essence in
books of law or history but in those books of scripture which contains God's eternal message list from Qur'an. "11 After humankind. the to a of rights she enumerated which and guidance This confirms Luca's observation legislation other difficulty
that the Qur'an (i. e. Shari `ah) has a stronger hold than any
12 impossibility demonstrates Muslims. It the the also mind of on
of divesting
the concept of human rights in Islamic
or great
law from its theocentric
basis.
in Swidler,A., (ed.) HumanRightsin ReligiousTraditions, 9 Hassan, R., 'On HumanRightsandthe Qur'anicPerspective', (1982),p. 51 at 52. 10Watson, J.S., Theory and Reality in the International Protection of Human Rights (1999) p. 15. Hassan, R., (1982) supra, note 9 above, at 55.
ýZSeeLuca, C., `Discrimination in the Arab Middle East', in Veenhoven,W.A., (cd.) CaseStudiesOn Human Rights and
83
It is a matter of faith that needs to be appreciated. For the realisation of the ideals of international human rights law in the Muslim world, differences. harmonisation bilateral for the theocentric is anthropocentric and of there need a The divine and the secular need not be imperatively conflicting nor reproaching. They must God, between Man be interact. There total and especially on separation a cannot of necessity influence is because This being the human of strong welfare. and well matters concerning had been Although has the religions people. world's of on a great population which religion in in to by the commit selfish atrocities against manner myopic a very past some misused been have to is it true that used equally greatly alleviate of religion principles also people, human sufferings. There are still many individuals and groups today who are motivated only by religious principles in their involvement in humanitarian activities all over the world. For the well being of humanity, the harmonisation of the theocentric and anthropocentric inhaling On Islam, is the human exhaling13. part of and as essential rights as perspectives of be law Islamic therefore seen or projected as a totally not must the theocentric perspective of be is humanitarian the therefore It accommodative of and must equally one. exclusionist law. As by human international eloquently expressed rights of anthropocentric perspective Manzoor,
"(t)he logic of Islam is to conjoin the paradigmatic truth of faith with the
does Islam fast truth, Community. Holding to the transcendence the of not pragmatic order of is in here, its The hands". " the to as reflected underlying principle the out of slip world allow jurists, Islamic Caliphs the Muhammad, Prophet the early and guided the rightly practices of is that although secular principles can not override Islamic moral and legal values, yet be It humanity betterment ideas for human the rejected. was cannot prejudicially of valuable in that regard that the great twelfth century Mälikl jurist and Islamic philosopher, Ibn Rushd (Averroes), considered it an Islamic duty to study the thought of earlier scholars and thinkers He from them. benefit said: and "When we read the books of earlier thinkers, we see their thoughts in these books. If there is something there that corresponds to the truth, we accept this and rejoice over it... And if we find something in their thoughts that does not correspond to the truth, it. "15 it to warn against and attention call we
FundamentalFreedoms,Vol. 1. , (1975) p. 113 at 215.
13This simile is borrowed from Manzoor, P., "Faith and Order: Reclaiming the Islamic Theory of Practice", (1990) 10 The Muslim World Book Review, No. 2, p. 3. 14ibid. 15See Fasl al-Maqdl 13 in Falsafah Ibn Rushd (Arabic) (1968) cited in Zakzouk, M., "Cultural Relations Between the West by Walpole, Possibilities Co-operation Translated Academic Level", Points Meeting Islam: the World of and on the of and M., (1992) 3 Islam and Christian-Muslim Relations, No. 1, p. 69 at 74.
84
This demonstrates the accommodating nature of the Islamic theocentric approach. It does not mean blindly shutting the door against everything emanating from human thought is injunction Qur'anic It upon Muslims to always co-operate for the attainment a and secular. 16 humanity. Thus Khoury has the pointed out that the contemporary good of common of Muslim world must, without loosing its theocentric identity, be able to contribute "towards the realization of the universal solidarity of all people and towards the realization of a social order in which all (human beings) are essentially equal before the law and enjoy equal rights in their daily life, and where tolerance is not only practised, but the irrevocable human rights of all are unreservedly recognized. ""
This is fully reflected in the Qur'anic injunction upon Muslims that says: "0 you Believers! Stand out firmly for God as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next to piety: and fear God for God is well acquainted with all that you do. " '$
Equally, there is the need in the interpretation of international human rights law for the law. interpretations Islamic The the theocentric nature of accommodation of and appreciation in international freedoms human instruments liberties the the and contained rights should of be sensitive to the moral values of the Shari `ah.
That is the inclusive approach of
interpreting and implementing international human rights law. A productive interpretation in for law Islamic the the quest a true universalism religious sensitivities of should appreciate in international human rights law within Muslim States. Where the door is shut completely it be difficult Islamic theocentric the perspective will against
if not impossible to interpret
international human rights law in the language of the Shari `ah or vice versa, no matter how hard the effort.
For, as stated by Eaton, "(t)here is a limit to how far men can go in
interpreting the Divine Word in terms of a language from which all the appropriate words have been excluded. "19 The theocentric approach was not actually alien to the origins of Western perspectives of human rights too. The Magna Carta of 1215, which is considered as the basis of English issued "grace liberties, God"20. The formulators of the the under was of constitutional 16See e.g. Q5: 2. 17Khoury, A. Th., Toleranz in Islam (1982) p. 185 cited in Zakzouk, M., (1992), supra, note 15 above, p. 73. 18Q5: 8. 19Eaton, H. G., The Keys To The Kingdom (1977) p. 180. 20See the preamble of the Magna Carta (1215). See e.g. Dickonson, J.C., The Great Charter (1955) p. 17.
85
American Declaration of Independence of 1776 also recognised that the rights it proclaimed Creator"21. They "Supreme by "their Judge to the also appealed of men were endowed unto the world for the rectitude of (their) intentions"22 in declaring those rights.
Similarly, the
in Rights Citizens Man French Declaration the the the of of and of 1789 rights contained declared "in be "sacred" Supreme Being, the the to presence of and were considered were 23 favour. , blessing hope His and of and with the Departure from the theocentric approach to both law and morality in the West, was an in faith developed Age Enlightenment the when a strong was materialism and aftermath of the power of human reason as a tool of endless progress not only in technological development but even in moral values.
Due to the earlier conflict between religion and
for in destruction West the the the use of religion well as political as scientific advancement be Church The to as stifling and repressive. was came perceived religion opponents, of human institution Through had the that mind. enslaved philosophical an as considered happiness human towards thus worldly and against the aspiration was motivated scholarship belief in religious salvation. The Church was harshly criticised and stripped of authority in his Man destiny State It by that take must control of matters. argued own was and political State. God from Both legal the the affairs of political and public and religion separating freed therefore of any consideration of religious morality, which was were authorities in human be the to civilisation. wheel of a clog considered The atrocities of both the first and second world wars however proved that it was neither himself Man barbaric. It be God that was who could was savage or very unjust nor religion in the use of authority. Making Man more political and materialistic and less religious and God-conscious did not therefore stop him from being brutal. Men similarly misused secular became imperative in for the even secular political need morality political authority and again human law back International thus to the an attempt was re-introduce rights moral authority. into the political.
So far a completely pragmatic and secular morality has still been adopted.
The fact that there continues to be violations of human rights in both religious and secular indicate fault lies himself. Man Having that the today's with world a theocentric of societies in does therefore not any way accommodate the violation of human rights more perception than an anthropocentric perception does.
The violations
are more often political
and
21See the preamble of the American Declaration of Independence (1776). 22See the conclusion of the American Declaration of Independence (1776). 23See the preamble of the Declaration of the Rights of Man and of Citizen, Translated in Paine, T, Rights of Man, (1984) p. 110.
86
Qur'an The humans. humans They the against evils of are economic than religious. is it deal that God "Verily mankind that: with mankind, unjustly not will emphatically says deal unjustly with themselves."24 Actually Muslims do argue that a sincere commitment to human inclined fulfil to the the of obligations religiously the theocentric perspective compels be that be will then because obligation they considered also as a religious would rights, in hereafter. for the accounted Human rights do not therefore have to be imperatively
secular, nor depend on the
be difficult " to If that State they reconcile with will are, society. or existence of a secular Islamic socio-legal thought. A common ideal shared by most Muslims, whether traditionalists the is the to their of replacement opposition or modernists, 26 The theocentric factor is therefore a theoretic secular one. dislodged. be totally legal thought that cannot moral and international human rights law will facilitate some harmony in
Islamic polity with a totally constant in Islamic political, An appreciation of this in human rights values that will
balance in application theoretical of long universal a realistic upon which a creating way a go In in Muslim that be the law human world. international especially achieved, can rights has that: insightful notably observed authority respect, one "The morality of religion has provided some of the glue that has made international law stick. The binding force of any law, international included, cannot rest solely on force. The legitimacy of international law and international organizations ultimately is a function of widespread individual beliefs that the law and its authorities are right long have lawyers the International potential of recognized and appropriate. international belief for building community whereby of a sense religious and moral just fate their be the the not. the nations, of all with concerned globe will peoples of 27 own"
It is clear from the above analysis that the theocentric and anthropocentric perspectives Both incompatible. human perspectives are accommodative of to rights are not vehemently While the the of concepts. through understanding proper analysis and constructive each other 8 does facilitate belief the freedom to accommodation the and of religion right of recognition law, Shari human `ah international rights theocentric provisions the perspective within of does He in (humans); facility for intends to God "... not want put you you every such as
24Q 10:44.
25But see e.g. Little, D., (1993) supra, note 8 above, p. 323 for the view that human rights has to be secular. 26See Binder, L., Islamic Liberalism: A Critique of Development Ideologies, (1988) p. 244. See also An-Na'im, A. A., Towards an Islamic Reformation (1990) p. 10. 27Janis, M. W., "Religion and International Law", (1993) American Society of International Law Proceedings, at 322. 28See e.g. Art. 18 of the UDHR (1948) and Art. 18 of the ICCPR (1966).
87
difficulties... "29 also facilitate the accommodation of the anthropocentric perspective within Islamic law.
INTERNATIONAL
HUMAN
RIGHTS
LAW AND WESTERN
LIBERALISM
Liberalism advocates values such as freedom, liberty, individualism,
utilitarianism,
30 is It tolerance. generally understood as a political or and pluralism, empiricism, human Applied liberty to the the that theory person. of complete postulates philosophical human rights, liberalism embraces liberty and tolerance as a moral theory as well as a in " is Western the Liberalism thought as main vehicle considered politico-legal philosophy. his full human individual liberty the the enjoyment of and guarantee to ensure perfect of its been linked Enlightenment has liberalism the Western and with always rights everywhere. defence of rationalism and skirmish with religion. Thus liberalism is often considered to be liberalism be Western States to Muslim consider generally mostly secular and anti-religious. by Shari `ah. Western it fear the the that set moral values can corrupt too permissive and liberalism is often seen as promoting the notion of absolute liberty and freedom of the individual even against societal morality. Canvassing liberalism as a notion of absolute liberty and freedom of the individual is however misleading. A notion of absolute freedoms and liberties opposes the very foundation law is both because law. This the theory and political authority of of political philosophy and do in fact essentially constitute some limitation upon the liberties. and freedoms of 32 The fallacy of an absolute notion of liberty had long been expressed by Locke individuals. as follows: "... Liberty is to be free from restraint and violence from others, which cannot be, for Man A Liberty law: is is But Freedom to told, there every we are not, as no where do what he lists ". 33
Under what has been described as the "fundamental liberal principle" there only exists a kind of presumption in favour of liberty, which places the burden of proof on anyone who 29Q2: 185. 30e.g. Seegenerally Gaus,G.F., "Liberalism", in Zalta, E.N., (ed.) Stanford Encyclopaedia of Philosophy, Online: http://plato.stanford.edu [12/2/2001].
" Although there exist different ideological approaches to human rights even in the West, the UN international human in their interpretation of international human rights treaties as is liberalistic do demonstrate bodies approach a treaty rights demonstrated for example in the practices of the HRC and the ESCR Committee in Chapters 6 and 7 below. J2See e.g. Dworkin, The Theory and Practice ofAutonomy (1988) pp. 22-23. 33Locke, J., Two Treatises of Government, Laslett, P., (ed. ) (1967) p. 324.
88
34 it. interfere in Thus State for to the the the actions of on power of any restriction contends individuals is not completely ousted under liberal theory but is only curtailed. The necessity of control by the political
authority through law is recognised, but any limitations they
impose upon individual liberties and freedoms must be publicly justifiable to be acceptable. That is what is often referred to as the "justificatory
principle" in liberal theory. This thus
freedom do fallacy that there to the the exists a complete of postulation whatever one exposes desires in liberal societies. The justificatory principle establishes that restrictions upon the in be determinable individuals themselves they not wrong provided are may and of rights justifiable. The difficult question however is how to determine the parameters of justification for any limitations or restrictions that political authority and law may place on individual liberty. This involves a question of values. Values are without doubt subjective and also not international in law law. differences in Islamic The to to or relation whether values are static, liberal in liberalism fact by the that traditions vary with respect to the western reflected even different Western nations and over time. 35 Thus while liberalism is associated closely with in it liberties Western centres on democracy or economic some countries, civil and personal freedom or secularism in others. With respect to human rights, liberalism is more relevant to the civil and political rights. In international human rights law, both political authority and law must be geared towards liberalism individuals. both The liberty theory the of recognises of a positive and a ensuring liberty in The liberty is that negative conception of respect. of conception more negative it in West. The liberty than the the conception positive of negative conception of emphasised free degree body interferes "to be to the to which no man or men of a person with considers 36 justification. The State is generally prohibited (negative (his) activity" without compelling interfering individual freedom from the the to determine his own moral with of obligation) individuals that the may even have the right to do what is wrong consequence values, with 37 from the moral point of view of the society as a whole. A moralist regime is thus often detested in most Western societies today. This is why many Islamic analysts see Western societies as being too permissive. It must be acknowledged however that this emphasis on the negative conception of liberty has, in many respects, greatly contributed to the guarantee saSee e.g. Gaus, G. F., Justificatory Liberalism: An Essay on Epistemology and Political Theory, (1996) pp. 162-166. 35For instance, women got the right to vote in the United States in 1920 and in Britain in 1928, and it was only in 1965 that African-Americans could vote freely in the United States after the Voting Rights Act suspended certain voter qualifications that kept them out. 36See e.g. Berlin, I., "Two Concepts of Liberty" in Berlin, I., Four Essays on Liberty, (1969) p 122. 37See Waldron, J., Liberal Rights: Collected Papers 1981-1991. (1993) pp. 63-87.
89
State from It in Western individuals the human countries. restrains the some rights of of individuals. freedoms liberties interfering the of and with unnecessarily Islamic legal and political theory also recognises the negative approach to liberty, but not 38 independent of religious morality and consciousness. Under Islamic law the political its Islamic due has to to the tendency of moral ensure maintenance urge a moralist authority by has State State. The to in Islamic the public order an obligation maintain standards 39 "commanding virtues and prohibiting vices". Basically therefore, the individual does not have absolute liberty under Islamic law. He is not, as expressed by Locke, the "absolute Lord 40 his Creator. Some but these to Person", his own of obligations obligations owes some of fall within the scope of public law, which the political authority has a duty to uphold. , Individual liberty is thus subjected to both the Shari `ah and to the political authority, which 41 Shari `ah. Because the Shari `ah is divine, the attitude of in itself is turn also subject to the 2 Although the Qur'an hear Muslims to its provisions is expected to be "we and we obey". justification often gives some
for its provisions regulating matters of human relations
(mu `ämalät), it is not a condition in Islamic legal and political theory that such justification This is based on the Islamic belief that human 3 knows human beings know Omniscience, God, being is limited knowledge what not. It and
human be within rationality. absolutely must
is interesting to note that a liberal theorist such as Hayek had also appreciated the limitation 4' Plato, had Hegel Karl Popper knowledge. human such as criticised philosophers also, and of 45 knowledge. Although the arguments of human limits Marx for failing to appreciate the of both Hayek and Popper were not aimed at accommodating religious principles within the liberal theory but to expose the defects in complete reliance on utilitarianism,
it provides
law does Islamic for the not rely completely on why main argument secular evidence limited knowledge. Man's rationalism, namely, The argument above does not however mean a total subjugation of the individual by the
legal doctrine hisbah (public law. Islamic Islamic The State the of order) only under power of 38SeeRahman,A., Readingsin Political Philosophy, Vol.! LIBERTY,(1987)p.129. 39This is termed Hisbah (meaning "public order") in Islamic politico-legal M'arüf Wa Nahy 'an al-Munkar ".
theory and expressed by the phrase "Amr bi al-
40Locke, J., "The SecondTreatiseof Government", in Laslett, P., (1967) supra, note 33 above,p.368. 41SeeQ4: 59. 42See Q 2: 285. See also An-Naim, A. A., "Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment", in An-Na'im, A. A., (ed.) Human Rights in Cross-Cultural Perspectives: A Quest For Consensus, (1992) p. 19 at 35 where he explains the binding nature of Qur'anic injunctions upon Muslims. 43See e.g. Q 3: 66 "... It is God Who knows, and you (human beings) who know not. " 44See Hayek, F. A., The Mirage of Social Justice (1976) p. 20. 45See generally Popper, K., The Open Society and its Enemies (1945).
90
in by State interference" "benevolent the the be for termed affairs of may what allows individuals to enhance their liberty according to the divine provisions of the Shari `ah. This is be in liberal liberty theory, there the may to western whereby of positive conception similar liberty individuals further liberties their to overall enhance of positive restrictions on some individual for liberty had Green that the Thomas freedom. on grounds an argued positive and if is desire he liberty free be to be to to or actually subject a personal or possess said cannot 46 is An to the he that that whom of an alcoholic, prohibition example control cannot craving liberty limitation his law to Islamic intoxicants consume what a on appear as will under of independently from in fact, hinder do, intoxicants thus him. But and acting people pleases Green liberty freedom the the equated such a person to a alcoholic. of and takes away 47 An important ideal of freedom his lost his liberty has to bondsman who cravings is independent, is liberal that theory a person who whose of recognised generally within 8 ideals. his In the his to example of alcohol given above, on and able reflect own are actions inclination independently individual's increases to the therefore act actually the prohibition liberty. Thus Rousseau had freedom-enhancing to is thus argued approach and a positive and 49 is fact however free". be "forced be The that this positive approach to to that a person can liberty, in form of paternalistic interference of the State, is prone to abuse by the political interference individual State's limits the the upon positive of where authority, especially liberty are not clearly defined or where there are no independent supervisory judicial or quasijudicial institutions to monitor such interference. Advocates of the negative approach thus freedom human liberty to the to threat and overall rights of as a see the positive approach individuals. Narveson has therefore argued that: "if we think people's liberty important, we it for it important the to think sake of promoting any ... goal, even enough not violate should if it be called liberty. "50 The truth however is that individuals can not have absolute freedom in doctrine dispensation. The almost every of order public exemptive within any political legal system confirms that fact. The realistic approach is therefore the adoption of a principle individual freedoms is intervention State interference the justificatory the of upon whereby of legally justified. lawful be but and where reasonably can only recognised
Such justifications
just defined justifications be however very general well and not or specific, sweeping must 46Green, (eds. ) Harris,P.,andMorrow,J., T.H.,Lectures ofPoliticalObligation andOtherEssays, onthePrinciples (1986)p.228. 47
ibid. 48See generally e.g. Mill, J.S., JS Mill On Liberty: In Focus. (ed. ) Gray, J., pp. 471-582; Benn, S.I., A Theory of Freedom (1988); Dworkin, G., The Theory and Practice ofAutonomy (1988); and Raz, J., The Morality of Freedom (1986). 49Rousseau, J, The Social Contract and Discourses, Trans. Cole, G. D. H., (1973) p. 177.
91
that may be.abused_with.impunity, by the political authority. Under Islamic law the political authority owes a duty not only to the people but to God justification. freedom the the to of ruled without violate not
The justificatory
itself justifying in Qur'an fact from finds the that the a support generally
principle
clause usually
(mu'ämalät). inter-human The relations accompanies nearly every regulation concerning it is itself. is Qur'an Theoretically, law in the Islamic justification thus the only perimeter of it is divine bias because human that the be free that revelation preceded a of can perimeter State itself. This is why Muslims put it above every human legislation. While the text of the Qur'an is not subject to amendment, its provisions may however be interpreted in the light of in Shari `ah holistic there that that the the a manner ensures of values within changes societal is no deviation from its theocentric basis. It is with respect to this that an Islamic legal maxim legal (i. their bi that "tatagayyar tagayur rulings e. meaning that al-zamän" al-ahkäm states 51 in This applies mostly to matters time. interpretations) may change with the change in be found Examples (mu'ämalät). the this human practices of of can relations concerning Muslim jurists of all ages. This facilitates the interpretation of the Islamic legal texts to justifications life. Also, in human dynamic the to the attaching when changes accommodate legal legal then the rule may change as well. change provisions certain An example can be cited of the Northern Nigerian52 case of Tela Rijiyan Dorawa v. Hassan Daudu53 which involved a land dispute between one Dorawa and one Daudu. The in in Sokoto54, Court before Upper Area a witness each calling evidence. an parties appeared Dorowa called one John (a Christian) as his witness while Daudu called one Hausa (a Muslim) as his own witness. The Upper Area Court after reviewing the evidence before it John the that testimony the evidence of a non-Muslim of on grounds rejected
was not
in favour Judgement law by Islamic thus the entered was court. applicable acceptable under Court. Sokoto High Dorowa Daudu. to the Hassan appealed of
The learned High Court
55 State, Grand Kadi judge, himself a Muslim, in consultation with the allowed the of the Islamic legal high lower The the the cited court. court ruling of appeal and overturned literature to illustrate, inter alia, that the traditional reason for the disqualification
of the
50Narveson,J., TheLibertarian Idea, (1988) p.33. "See e.g. al-Ghunaimi, M. T. Durüs f Usal al-Qänün al-Wada'7 (Arabic) p. 150, cited in al-Ghunaimi, M. T., The Muslim Conception of International Law and the Western Approach (1968) p. 101. 52Nigeria is a multi-religious nation with a predominant Muslim population, especially in the Northern part where Islamic law is applicable. 5° (1975) Northern Nigerian Law Report, 87. S°The Upper Area Courts apply Islamic law.
55The Grand Kadi of a Statein Nigeria is the most senior Islamic law judge within the State'sjudiciary. He is the head of
92
due false fear law Islamic their the evidence giving of was testimony of non-Muslims under is there belief, Islamic that their lack no such when acceptable was their evidence to and of fear or in case of necessity. The high court was said to have "regarded the condition of Nigeria today being a country with large Muslims, Christian and animist communities, living the the business by making transacting necessity" as satisfying other, with each side and side 56 law. in Islamic evidence of a non-Muslim admissible
One can thus correctly conclude that being liberal is not un-Islamic. Islamic law also is independent from in but, liberalism that not a sense as usual, accommodates the concept of Islamic religious and moral consciousness. The difference between Islamic liberalism and Western liberalism is thus a matter of degree, which rules out an absolute incompatibility between the two. This brings us to the question of "Islamic fundamentalism", a term often law. Islamic the of application associated with
INTERNATIONAL
HUMAN
RIGHTS LAW AND "ISLAMIC
FUNDAMENTALISM"
Fundamentalism is defined in the ordinary sense as "(u)nswerving belief in a set of basic 57 The term was originally and unalterable principles of a religious or philosophical nature". in States United America Christian faction the Protestant in to of group of a a used reference believed in Christianity. They the tenets to traditional of orthodox that adhered strictly infallibility
Christian the to the purity of the-Bible pristine and emphasised adherence of
faith. 58 The term "Fundamentalism"
became prominently
associated with Islam when
Western commentators used it to describe the Islamic element of the Iranian revolution that deposed the late Shah of Iran in 1979.59 Since then "Islamic Fundamentalism" has become a belief that the revitalisation of Islamic "the defined has been dictionary as word and specific fundamental the to through principles and practices of return a societies can come about only infallibility in belief "60 If the Islam. the early
of the Qur'an and the revitalisation of Islamic
factors Islamic Islam fundamental the the to of through principles of are adherence society fundamentalism,
then
almost
every
Muslim
would
be
described
as an Islamic
the Shari`ahCourt of Appeal of the State.
s6See Hon. Justice Mohammed, U., "Shariah and the Western Common Law: A Comparative Analysis", in Abdul-Rahmon, M. O., (ed.) Thoughts in Islamic Law and Ethics (1992) p. 16 at 25. 57See Readers Digest Universal Dictionary (1987) p. 619. 58See generally, Barr, J., Fundamentalism (1981) 2"d Ed., and Marsden, G., Fundamentalism and American Culture (1980). 59See e.g. Chandra, M., Human Rights and the New World Order (1993) p. 177. 60See Pearsall, J., and Trumble, B., The Oxford English Reference Dictionary, 2"a Ed. (1996) p. 746.
93
fundamentalist, 61because those factors are common inclinations of all Muslims. Fundamentalism has however acquired a general usage today, in relation to Islam, has been dictionary The from different is term the used meaning. ordinary negative and which derogatively to refer to demands for the political implementation of Islam or the application fanaticism For States, in Muslim to terrorism. Shari `ah and the connote also used and of instance the New York Times published an article in 1993, which stated, inter alia, that: fundamentalism is fast becoming the chief threat to global peace and is local disturbance It for through terrorism. and national as a cause security as well by fascism in 1930s by Nazism the then the to and and menace posed akin " in 1950s". the communism
"Muslim
The term "Islamic Fundamentalism" or "Muslim Fundamentalism" thus tends to project Islam and Islamic law as threats to international human rights and global peace. Muslims have inaccurate to the the term this and objected use of misleading and as consider generally 63 Islamic in in such derogative manner reference to contemporary resurgence. Certainly there have been instances where Muslim militant groups have been alleged and have also accepted responsibility
for bombings, hijacking aeroplanes, kidnappings, issuing death threats and
holding innocent people hostage. In many of such incidents innocent lives are lost, people are incidents These human are normally reported in the terrified and rights are grossly violated. Western media as acts of Islamic fundamentalism. The pertinent question to ask is whether in has law. Miah Islamic find this regard that: observed these acts support within "Islam prohibits all forms of terror and tyranny particularly against innocent people. It further prohibits, even in war, any unjust or cruel treatment of women, children livestock destruction deliberate and environment as well as of persons; and elderly ' defeated the towards enemy". cruelty
It has therefore been argued on one hand that these acts are rather acts of extremism and fanaticism on the part of Muslims who commit them and are not tolerated by Islam and 65 by On Islamic law. be the thus or supported other as acts advocated addressed not should 61SeeChandra,M., (1993), supra, note 59 above,pp. 177-8; Seealso An-Naim, A. A., (1990) supra, note 26 above p.3.
62See The New York Times, 9 September 1993. See also statement by the former NATO Secretary General Willy Claes, that: "Islamic Fundamentalism is at least as dangerous as Communism. Please do not underestimate this risk" cited in FOSIS and Islamic Foundation, Essays on Islam, (1995) p. 112. 63See e.g. Chandra, M., (1993), supra, note 59 above, pp. 177-180; Ahmad, K., "The Nature of the Islamic Resurgence", in Esposito, J.L., (ed.) Voices of Resurgent Islam (1983)pp. 225-226. See generally also the articles on "Fundamentalism" in Essays on Islam (1995), supra, note 62 above pp. 77-180. 64Miah, F., in Essays on Islam, (1995), supra, note 62 above, p. 112 at 117. 65ibid.
94
hand it has also been argued that such acts of extremism are usually reactions to social and international in lands Muslim injustice to the taking which community and place political Al-Qaradawi its thus observed that: tacitly support. or eyes usually closes does not originate haphazardly (but) must indeed have causes and (but) by blue... do the are out of governed not come and actions motives, ... events the law of cause and effect... Knowledge of the causes in this respect is essential to enable us to define the remedy... "' "Extremism
Akbar Ahmed has illustrated further, with reference to the reaction of the West to the in in frustrations Algeria 1992 democratic that the as an example of elections cancellation of by He Muslim lead to said: groups. acts extreme such could "... when the army prevented FIS (Islamic Salvation Front) from taking power and the tanks rolled into the streets, the West was jubilant. The beatings and killings, did dim joy. harassments Western in to the the not appear mosques, arrests and even The main news was that another Islamic movement had been stopped. There were double for democracy... Muslims the tears appalled at standards of the were no West. Had there been a similar military action, say in Pakistan, the Western media law. They hysterical become have the tyranny or martial stories of with would death democracy in Muslim have the the about of paraded old arguments would here for But inherent Muslims the authoritarian rule. was a of predilection society, duly denial to the West the the of power elected over was gloating situation where FIS. The double standards cause Muslims to ask, `Why is the West constantly This manner of negative Western response will provoke a hostile to us? ' ... s67 anti-Westernposition.
virulently
The arguments go to the effect that the contemporary resurgence of Islam and calls for the application of the Shari `ah as public law in many Muslim countries should not be seen as fundamentalism in the sense of promoting international human rights. of principles
fanaticism that violate the and extremism
The call for the complete application of the
Shari `ah in Muslim lands is in itself a protest against social and political deterioration in the Muslim world today and is not inherently antagonistic to the ideals of international human is be but "hostile law, to the cause of to or whoever perceived whatever rather rights frustration and oppression, be it internal or external. "68 Fingers are however often pointed to some Muslim
States to argue that the
implementation of Islamic law in those countries have sometimes revealed pictures that
66al-Qaradawi, Y., Islamic Awakening Between Rejection and Extremism" (1990) p. 25; See also the Introduction in Tamimi, A., (ed. ) Power Sharing Islam? (1993). 67Ahmed, A. S., Living Islam (1995) p. 148-149. 68See Ahmad, K., `The Nature of Islamic Resurgence' (1983) supra, pp. 219.
95
69 international fall human threshold the of short of rights standards. Does this not greatly indicate that even when understood in its ordinary sense, Islamic fundamentalism as an "unswerving belief'
in the basic and traditional principles of the Shari `ah will still put
Islamic law in conflict with the provisions of international human rights law? This is not necessarily so. Human rights violations occur in every country of the world due to many different factors. Violations of human rights in the United States of America for instance will ideology is in US that the the mean of necessarily political conflict with international not human rights law.
The guarantee of human rights depends much on the attitude of
in human the power who are actual guarantors of rights at every particular point governments in time. Every government or regime in power has a way of manipulating laws, attitudes, international law beliefs the to consolidate control and and even of very principles cultures, Even fundamental human legitimacy. the most rights are sometimes violated in that gain in human does The guarantee or abuse of rights any given society not solely depend process. beliefs it ideology State, depends humanitarian the the or of a much more on political and on will of the ruling authority.
The fundamentalbelief of Muslims in the immutability of the Qur'an is the strength of both Islam and Islamic law. Any acceptance or acquiescence by Muslims to its mutability or fallibility
repudiates the divine basis of both the Islamic religion and the law. Muslims are
thus very careful of not jeopardising the divine basis of their faith and that of the Shari `ah. But while they hold strongly to the belief that the Qur'an being a revelation of God, is eternal Muslims believe in benevolence God the also of and that His law was and unchanging, justice bring humanity. in Thus to to and comfort considering that they owe some revealed duties to God under the Shari `äh, they do not also lose sight of the munificence of God upon 70 Shari `ah. The Shari `ah is thus not supposed to be interpreted nor them through the implemented by rulers in any manner that would be oppressive upon the ruled. In one of his Traditions, Prophet Muhammad is reported to have said that God said: "I have forbidden have it for forbidden myself, and made amongst you, so do not oppress one oppression " That Tradition explains precisely the message international human rights. of another". Thus adhering to the fundamentals of Islam does not necessarily advocate oppression, brutality or violation of international human rights law. 69See e.g., Lawyers Committee for Human Rights, Beset By Contradictions: Islamization, Legal Reform and Human Rights in Sudan (1996); Levitt, M. A., "The Taliban, Islam and Women's Rights in the Muslim World" (1998) 22 The Fletcher Forum of World Affairs, 113-116. 70See e.g. Q 2: 185.
96
The Muslim world today may however be classified, in its interpretation of the Shari `ah, into the main divisions of "traditionalists"
and "modernists".
The "traditionalists"
are those
interpretations in Shari laid `ah to the the tenacious adherence classical of as a see value who down from the tenth century in the traditional treatises of Islamic law. They are sometimes also referred to as "conservatives" or "hard-liners" looking" interpretations and non-compromising
due to the sometimes strict "back-
adherence to the classical treatises of the
founding jurists of Islamic law. The "modernists" are those who, while identifying with the it law, jurisprudence Islamic to seek make relevant to modern times. and methods of classical They believe in the continual evolution of Islamic law and argue that if the Shari ah must developments be for with modern and applicable meaningfully all time then such really cope into in interpretation be developments the taken must consideration of the Shari `ah. modern They are also referred to as Islamic liberals or moderates. They adopt a "back and forwardlooking"
in interpretations Shari `ah. The scope of harmonisation their the of approach
between Islamic law and international human rights law in the different Muslim countries depends therefore upon whether the political
authority follows a hard-line or moderate
its interpretation Shari `ah. The in the of expediency of each approach will continue approach to become visible in the continuing arguments of this thesis.
CONCLUDING
REMARKS
The above analysis reveal that the conceptual differences on human rights in Islamic law be beyond is human law harmonisation. It international rights may not clear that the and theocentric concept of Islamic law cannot be ignored in its relationship with international human rights law because it influences every aspect of the Islamic polity.
The theocentric
be for however human used as camouflage oppression or abuse of rights. concept cannot There is need for an upright political
and humanitarian will in Muslim States that will
demonstrate an interpretation and application of Islamic law in a manner that shows that God is Most Gracious and Most Merciful to Mankind. " Equally, there must be an appreciation of the theocentric perspective of Islamic law within
the international human rights regime which will
accommodate a justificatory
approach rather than a strictly secular and exclusionist approach in the interpretation of 71Seee.g. Ibrahim, E., and Johnson-Davies,D., Forty Hadith, An-Nawäwi's (3d Ed., 1985) 80 p. 72Every Chapter of the Qur'an, except one, is headed by the "preamble" Merciful".
"In the Name of God, Most Gracious, Most
97
international
human rights principles. Professor Rene David has rightly
impossibility
of rejecting the Islamic legal tradition without rejecting the entire Islamic
observed the
" is international Since human rights regime, the the the such rejection not goal of civilisation. is legal Islamic the tradition of utmost importance for realising the ideals accommodation of in human international the Muslim world. rights of
It is in that perspective that the ICCPR
and the ICESCR, representing the International Bill of Rights, will be examined in the light in following law Islamic the two chapters. of
73See R. David, and E. C. Brierley, Major Legal Systems in the World Today (1985), 482. p.
98
PART Two:
Comparative
Legal Analysis
CHAPTER
6
The International Covenant on Civil and Political Rights (ICCPR) in the Light of Islamic Law
INTRODUCTORY
REMARKS
Within the international human rights objective of the UN, the ICCPR constitutes the into force law It 23 international and entered of civil political rights. on guarantee positive March 1976 and has to date been ratified by 148 States, including 39 of the 56 Member ' (OIC). Conference Of the 6 Muslim States that are Islamic Organisation States of the of in (Iran, Sudan Chapter Tunisia) have 8 three for this thesis, and of ratified case studies used 2 have Arabia, Turkey) (Saudi Pakistan and not. the ICCPR while the other three
This chapter will follow up the argumentsof the preceding chaptersby examining the its in law determine light Islamic ICCPR to the the practical compatibility. of provisions of Reference will be made to the practice of the Human Rights Committee (HRC) and also to Covenant. In Islamic law, the the respect on under of rights guaranteed expositions scholarly be basic i. Qur'an Sunnah, the as will cited authority while the and e. sources, the main juristic
jurisprudence different Islamic be the will schools of also of analysed in views
Although State ICCPR. the the the practice of some guaranteed under rights of respect Muslim States will be examined later in Chapter 8, reference will still be made to some State in light ICCPR this to throw the the chapter on meaning of necessary where as practice interpreted by the HRC. The OIC Cairo Declaration on Human Rights in Islam will also be in law human Islamic further for the acceptable rights standards elaboration of where cited be interpreted ICCPR by Each the the the analysed substantive rights of will as of relevant. HRC, followed by an Islamic law perspective to identify areas of agreement, differences and possible reconciliation. Although this chapter is specifically on the ICCPR, reference will be made to necessary Articles of the 1979 Convention on the Elimination of all Forms of Discrimination Against
' Seethe Statusof Ratification of the ICCPR at the UN Human Rights Treaty Website at: httl2://www. unhchr-ch/htmi/menu3ib/accnr.htm [15/2/2001]. 2Turkey signed the ICCPR on 15 August 2000 but is yet to ratify it.
99
Women (CEDAW)3 in the analysis of the rights of women under the Covenant due to its topicality in the international human rights cum Islamic law debate.
THE RIGHTS
GUARANTEED
UNDER THE ICCPR
The ICCPR guarantees twenty-four substantive civil and political rights. They are: Article 1
The Right of self-determination.
3
Equality of Rights between men and women.
6
The Right to life.
7
Freedom from torture or cruel, inhuman or degrading treatment and punishment.
8
Freedom from slavery, servitude and forced labour.
9
The Right to liberty and security of person.
10
The Right to humane incarceration system.
11
Freedom from imprisonment for contractual obligation.
12
The Right to liberty of movement and choice of residence.
13
Freedom of aliens from arbitrary expulsion.
14
The Right to fair hearing and due process of law.
15
Freedom from retroactive criminal law.
16
The Right to recognition as a person before the law.
17
The Right to privacy.
18
The Right to freedom of thought, conscience and religion.
19
The Right to freedom of opinion and expression.
20
The Prohibition of propaganda for war and incitement to hatred.
21
The Right of peaceful assembly.
22
The Right to freedom of association.
23
The Right to marry and found a family.
24
The Rights of the child.
25
Political rights.
26
The Right to equality before the law.
27
The Rights of ethnic, religious or linguistic minorities.
1249 LINTS 13. Enteredinto force on 3 September1981 and has beenratified by 44 of the 56 Member Statesof the OIC.
100
Prima facie, the above list of rights as contained in the ICCPR should raise no problems in the light of Islamic law. But as is the case with all legal provisions it is the interpretation determine international Being that their treaty the ICCPR is subject those scope. an rights of to the general rules of interpretation of treaties under the Vienna Convention on the Law of 4 Treaties. Basically the Vienna Convention provides that an international treaty "shall be interpreted in good faith and in accordance with the ordinary meaning to be given to the 5 in in light its their context and of terms of the treaty object and purpose". Before proceeding to examine the substantive rights as listed above, we shall first identify the object and Covenant the and also analyse the obligation of the State Parties as provided of purpose Covenant. 2 Article the of under
THE OBJECT AND PURPOSE OF THE COVENANT
Legally, the object and purpose serves as a parameter of interpretation that prevents the 6 destruction of the essence of the substantive provisions of a treaty. The HRC has broadly follows: ICCPR the the and purpose of as object outlined "... The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken. "'
It follows from the above statement that the object and purpose of the ICCPR is to individuals from States. To the and political rights civil of realise that objective, guarantee Covenant is the HRC under established as the supervisory machinery for the obligations the State Parties. The by declares ICCPR the the the purpose and preamble of also undertaken 8 Covenant. It inherent the dignity that the to the motivated adoption of refers of aspirations the human person as the bedrock of human rights and also recognises the "equal and inalienable rights of all members of the human family" as the "foundation of freedom, justice " in Through ICCPR State the the Parties aspire the the world. enforcement of peace and Seee.g. Alberta Union v. Canada,CommunicationNo. 118/1998,Human Rights Committee,UN. Doc. CCPR/C/OP/1at 34 (1984), Par. 6.3.
s See Art. 31 of the Vienna Convention on the Law of Treaties (1969), 1155 UNTS 331. See also Nowak, M., Commentary on the UN Covenant on Civil and Political Rights (1993) (1993) p. xxiii for a brief analysis of the rules governing the interpretation of the ICCPR provisions. 6 See e.g. Buergenthal, T., "To Respect and to Ensure: State Obligations and Permissible Derogations" in Henkin, L., (ed. ) The International Bill ofRights, The Covenant on Civil and Political Rights (1981) p. 72 at 90 7 See General Comment. 24, Par. 7. s See UN Doc. A/2929 Annotation of the Draft International Covenants on Human Rights prepared by the Secretary General (1955) pp. 32-36.
101
towards the enhancement of human dignity by fostering an ideal human community that justice, lead freedoms from fear freedom that to and and want; civil and political guarantees 9 human beings. being of all well general and peace From the Islamic perspective the above objectives of the ICCPR are commensurate with the general provisions and ultimate objective of the Shari `ah as already established in the 10 in Cairo Human Rights Islam Declaration The this thesis. on of chapters preceding declaring States "to in its by Muslim the wish of preamble aspiration reiterates a similar human from to to to the protect man exploitation assert rights, of mankind efforts contribute in dignified life freedom and his to the to accordance with right a and affirm persecution, and 11 It also states that the fundamental rights and universal freedoms are an Islamic Shari`ah". integral part of Islam and are binding divine commandments which no one has the right to 12 Reference to Islamic Shari `ah in the Cairo Declaration reignore. suspend, violate or distinguished law from the human Islamic to theocentric the as rights under approach affirms impede but does ICCPR13, the the shared noble objective not under approach anthropocentric human dignity. enhancing and of protecting
OBLIGATIONS
OF STATES PARTIES UNDER THE ICCPR
Article 2 1.
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the kind, distinction Covenant, of any such as race, colour, sex, language, without present birth or other or social origin, or other ojiinion, national property, political religion, status.
2.
Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3.
Each StateParty to the presentCovenantundertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any
9 SeePechota,V., "The Developmentof the Covenanton Civil and Political Rights" in Henkin, L., (1981) supra, note 6 abovep.32-33. 1°We have already establishedin Chapter4 abovethat the ultimate objective of the Shari'ah (i.e. magäsid al-Shari'ah) is to 69 beings. See human being p. above. of the well realise " SeePar. 2 of the preambleof The Cairo Declaration on Human Rights in Islam (1990) UN. Doc. A/CONF. 157/PC/62/Add.18(1993). 12Seeibid. Par.4. , 13SeeChapter5, p. 81 above.
102
by legal State, for the the of and to system provided authority other competent develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.
Does Islamic law restrict the Muslim States in anyway from fulfilling
these obligations?
Under Article 2(1) the States Parties undertake "to respect" and "to ensure" the effective and "without implementation the the under covenant rights guaranteed of all appropriate national distinction of any kind". The duty "td respect" is a negative obligation on the part of the State is duty "to to take the the obligation necessary to ensure" a positive while rights violate not is important An this the the aspect of positive obligation rights. enjoyment of steps to enable domestic legislation by State of necessary each already provided, the enactment, where not 14 legislative law, State Under Islamic the the the to power of Party rights. guaranteed ensure is not totally unlimited. It is theoretically proscribed by the philosophy that God is the in is lawful has through Who the Legislator and unlawful revelation what prescribed ultimate Qur'an. According to Justice Iqbal: "The legislature in an Islamic state has a restricted role; technically speaking, its limits by be delegated is the the within prescribed only exercised and can authority Qur'an and Sunnah.... Generally speaking, there are three possible spheres for legislative activity in a Muslim national state: (1) to enforce laws which have specifically been laid down in the Qur'an and Sunnah; (2) to bring all existing laws in conformity with the Qur'an and Sunnah, and (3) to make laws as subordinate legislation which do not violate the Qur'an and Sunnah." 15
Islamic jurists generally consider any State legislation that makes lawful what God has God has made lawful in the Qur'an as exceeding Qur'an in the what or prohibits prohibited 16 law. instance during Islamic For legislation human the limits under allowed the of
ICCPR, Sudanese the the Sudan's on representatives report periodic second consideration of stated, inter alia, that:
14Art. 2(2) ICCPR.
's SeeJusticeIqbal, J., "The Conceptof Statein Islam", in Ahmad, M., (ed.) State Politics and Islam (1986) 37 at 49-50. This is, for example,evidencedin practice by the provision in the Constitution of Islamic Republic of Pakistanthat "No law injunctions Islam laid down in is Holy Qur'an and Sunna and existing the to the of as be repugnant which shall enacted ... law shall be brought into conformity with such injunctions". 16See e.g. al-Qaradawi, Y., The Lawful and the Prohibited in Islam (1984) p. 18.
103
"The Sudanese parliament had decided against abolition of the death penalty. The jurisprudential argument for its continued existence was that the death penalty was mandatory for certain offences under Islamic law. ""
This general rule does not however mean that the Islamic State is precluded from legislation Today at all. all Muslim States do legislate on various aspects of life undertaking by State the needs of time. While conscious of the general rule of nonas required policy and in Shari `ah the enacting subsidiary legislation, most Muslim States often rely on of violation Islamic legal principles such as siyäsah shar `iyyah (legitimate governmental policy), darürah (necessity), and maslahah (welfare) in necessary instances to legislate for the realisation of human welfare and State policy. A combination of these facilitating principles of Islamic law together with
some margin of appreciation under international human rights law are
necessary paradigms to ensure the positive realisation of the rights guaranteed under the ICCPR within an Islamic legal dispensation. The undertaking under Article 2(1) to respect and ensure all the rights guaranteed "without
distinction of any kind, such as race, colour, sex, language, religion, political or
birth national or social origin, property, or other status" is of utmost opinion, other importance. It reiterates the principle of equality and non-discrimination human rights. After
in the enjoyment of
analysing the preparatory works on the Covenants, Ramcharan
both "distinction" the terms that concluded
and "discrimination"
as used in the ICCPR and 18 "exclude distinction discrimination". Islamic law also ICESCR only arbitrary or unjust or
discrimination, but is there arbitrary or unjust prohibits notable tension in respect generally international human distinction grounds of on sex and religion vis-ä-vis rights law, which of Articles below. be the under relevant substantive examined will Under Article 2(3) States undertake to provide effective domestic remedies against Covenant the the rights guaranteed of under and to ensure that such remedies when violations be by This judicial, the enforced shall competent authorities. accommodates granted, political in remedies respect of human rights violations, but Nowak has observed and administrative 19 intendment is Article 2(3)(b) judicial the that to of place priority on remedies. This notably human the obligation of effectively protecting primary rights on State Parties and is places in by Article 5(2) Optional First Protocol (OP 1)20to the the the provision of substantiated ICCPR that the HRC "shall not consider any communication from an individual unless it has '7 SeeHuman Rights Committee SummaryRecord of the 1629thMeeting: Sudan.31/10/97. U.N. Doc. CCPR/C/SR.1629, Par.15. s SeeRamcharan,B.G., "Equality and Non-discrimination", in Henkin, L., (1981) supra, note 6 above,p.247 at 258-259. "Nowak, M., supra, note 5 above,p.59.
104
domestic has In R. T. individual (t)he that... available remedies". v exhausted all ascertained France the HRC observed that the reference to "all available remedies" in Article 5(2) of the 21 judicial first in OPI "clearly refers the remedies". place to There is nothing under Islamic law that inhibits Muslim
States from fulfilling
this
in domestic the the to of violation of rights of remedies case effective provide obligation individuals guaranteed under the Covenant. Islamic law does also prescribe for remedies in form of compensation for violation of a person's right payable by the injurer be it an 22 State. individual or the
THE RIGHT
OF SELF-DETERMINATION
Article 1 1.
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2.
All peoples may, for their own ends, freely dispose of their natural wealth and resources international to economic co-operation, out of arising any obligations prejudice without based upon the principle of mutual benefit, and international law. In no case may a its be deprived of own means of subsistence. people
3.
The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization in that conformity with the the shall respect right, and of self-determination, right of provisions of the Charter of the United Nations.
Both the ICCPR and ICESCR contain this Common Article determination. Although it is a right of peoples rather than of
1 on right of selfindividuals, 23 its importance
by the HRC has been individual human the to expressed rights realisation of and relationship as follows: "The right of self-determinationis of particular importance becauseits realization is individual human for the observance of guarantee and effective condition an essential is for It that for those the rights. reason of promotion and strengthening and rights law in in forth States the a provision of positive that right of self-determination set
20999 UNTS 171. 21R. T. [name deleted] v. France, CommunicationNo. 262/1987 (30 March 1989),U.N. Doc. Supp.No. 40 (A/44/40) at 277 (1989). Par. 7.4.
22See e.g. Qadri, A. A., Islamic Jurisprudence in the Modern World (1986) pp. 341-358. u In Lubicon Lake Band. v. Canada the HRC observed that: "the author, as an individual, could not claim under the Optional Protocol to be a victim of a violation of the right of self-determination enshrined in article I of the Covenant, See Par. 13.3, Communication No. 167/1984 (26 March 1990), peoples, as such". deals upon conferred rights with which UN Doc. Supp. No. 40 (A/45/40) at 1 (1990). See also Joseph, S., Schultz, J., and Castan, M., The International Covenant Cases, Materials, and Commentary (2000) pp. 106-107. Rights, Political Civil and on
105
both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants. 9924
The fact that two Muslim States, Afghanistan and Saudi Arabia, championed in 1950 the initiative in Article 1 that after an earlier of self-determination on right culminated proposal 25 in is had failed, that the USSR by the conflict with Islamic law. This not right suggests right
was originally
conceived and utilised
instrument an as
of decolonisation
that
It the independence the guaranteed right of people essentially most colonies. of accelerated independence determine freely their and to pursue their economic, status and own political to 26 development. social and cultural The scope of the right was subsequently broadened and divided into external self27 External self-determination covers the scope internal determination and self-determination. is be both to and considered a and economically, politically subjugation, of alien or colonial 28 Internal self-determination is the right of "peoples" international law. peremptory norm of is "the internal that to State to right autonomy, choose economic political and within a given in 1929 Sometimes future. the exercise of that right a form their political and economic the of independence State the of which choose path may "people" within an existing sovereign This from State lead the one. usually arises as a to an existing of a separate creation could fundamental "people" denial State's the the the rights of of substantive consequence of 30 This has to with problems respect statepolitical enormous autonomy. claiming such invoked human leads to when as rights especially a of other violations often and sovereignty Covenant, deliberating State. During the the of stage most existing minority right within an ZAHRC General Comment 12, Par. 1; UN. Doc. HRI\GEN\I\Rev. lat 12 (1994). (The HRC General Comments will in followed by Many Comment General its the that the be of countries participated to number). as hereinafter referred importance had the Covenant of the right of self-determination to the similar views on expressed also the drafting of in Self-Determination Henkin, L, (1981) human See Cassese, A., "The Peoples", individual of rights. other of all realisation 101. 92 6 at p. above, supra, note
2SSeeCassese,A., ibid., p.92. " SeeArt. 1(1) of the ICCPR and the 4`hPrinciple in the G.A. Declaration on Principles of International Law Concerning Friendly Relations and Co-operationAmong Statesin Accordancewith the Charter of the United Nations 1970,G.A. Res. 2625 (XXV) of 24 October 1970. 27SeeCassese,A., (1981) supra, note 24 above, p. 96ff; Kiss, A., "The People's Right to Self-Determination" (1986) 7 Human Rights Law Journal 165at 170 ff; and Nowak, M., (1993) supra, note 5 above,pp.6-25; Higgins, R., Problems and Process,international Law and How to UseIt (1994) pp. 111-128.Seealso Principle VIII of the Helsenki Final Act I Co-operationin Europe (CSCE) which, by virtue of the right Security Conference by 1975 the August on and 1 adoptedon "to determine,when and as they wish, their internal and external the all peoples right of recognises of self-determination, ". interference... external without political status, See e.g. Cassese, A, (1981) supra, note 24 above, p. 1 11; Dinstein, Y., "Collective Human Rights of Peoples and Quarterly Comparative Law 102 at 106; Kiss, A., (1986) supra, note 27 above, p. International 25 (1976) and Minorities" United Implementation Self-Determination, Nations Resolutions, Study of the Special Right The H., to Espiell, of Gros 174; Prevention Discrimination Protection Sub-Commission of on and the of Minorities (1980) U. N. Doc. Rapporteur of E/CN. 4/Sub. 2/405/Rev. 1, p. 11ff and p.40. 2'9See Higgins, R., (1994) supra, note 27 above, p. 118. See also McCorquodale, R., "Self-determination: A Human Rights Comparative Law Quarterly, 857 International 43 (1994) and at 864. Approach"
3°SeeHiggins, R., ibid, p. 124.
106
of the developing nations had opposed the extension of the right of self-determination beyond colonial situations for the fear of it conferring alleged rights of secession on 1 Harris has pointed out notably in this regard that the right of self-determination minorities. "does not extend to claims for independence by minority groups in a non-colonial context". 32 This is corroborated by the UN Committee on the Elimination
of Racial Discrimination
(CERD) in its General Recommendation No. 21 on right of self-determination that: "... in accordance with the Declaration of the General Assembly on Friendly Relations, non of the Committee's actions shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples and possessing a government representing the whole people belonging to the territory without distinction as to race, creed or colour. In view of the Committee international law has not recognized a general right of peoples to unilaterally declare secession from a state. In this respect, the Committee follows the views expressed in the Agenda for Peace (paras. 17 et seq.), namely that a fragmentation of States may be detrimental to the protection of human rights as well as to the preservation of peace and security. This does not, however, exclude the possibility of arrangements 33 by free " agreements of all parties concerned. reached
Since the tendency for invoking the right of self-determination towards independence by is often triggered by oppression or gross denial of their civil and political rights minorities State, wherever the rights guaranteed under the Covenant are respected and ensured a within by the State to all without discrimination the right of internal self-determination would have been fulfilled. Apart from its significance as a civil and political right, the right of selfdetermination also has an important link with economic, social and cultural development. This is evidenced by its repetition in the ICESR and also in Article 1(2) of the Declaration on 34 Development. Nowak has observed in that regard that "(s)elf-determination the Right to has development "the that are closely associated", and pointed out continually spiralling and difference between over- and under-development and the current debt crisis in the countries World Third South that the the show most of peoples are still far removed from true selfof determination. "35
31SeeCassese,A., (1981) supra, note 24 above,p.93. 32See Harris, D. J., Cases and Materials on International Law, (51hEd., 1998) p. 113. See also Higgins, R., (1994) supra, McCorquodale, R., "The Right 124, Self-determination" in Harris, D. J., and Joseph, S., (eds.) The 28 and of p. above, note International Convention on Civil and Political Rights and United Kingdom Law (1995) p. 91 at 104.
33SeePar. 6., Committeeon the Elimination of Racial Discrimination, GeneralRecommendationXXI on Selfdetermination, UN Doc. CERD/48/Misc. 7/Rev. 3 (1996). Seealso Art. 8 of UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992) GA Res.47/135.
u G. A. Res. 41/128 of 1986. See also General Comment 12, Par. 5 for the HRC's comment on the economic content of the right of self-determination.
3sSeeNowak, (1993) supra, note 5 above, p.8.
107
It is in the context of this last statement and against colonisation that developing nations generally and Muslim
States specifically
tend to view and advocate the right of self-
determination. The right of external self-determination against colonisation and subjugation justified Shari fully `ah be the within general context of prohibitions of oppression and can OIC Article 11(b) Cairo Declaration the of peoples. of provides that: subjugation of all types being one of the most evil forms of enslavement is totally prohibited. Peoples suffering from colonialism have the full right to freedom and self-determination. It is the duty of all States and peoples to support the struggle of colonized peoples for the liquidation of all forms of colonialism and occupation, and all States and peoples have the right to preserve their independent identity and exercise control over their wealth and natural resources." "Colonialism
Apart from colonial contexts Muslim States strongly abhor the invocation of the right of by independence basis for The minority groups as a or secession. classical self-determination Islamic politico-legal notion of a single Islamic political empire that transcends ethnic, tribal, distinctions disfavours basis to the territorial claim secession on any of right to selfracial or determination. Hashmi has observed that Muslim States tend to "condone only the selfdetermination of Muslims living within states with a non-Muslim majority" and consider as "(c)laims of self-determination advanced by Muslim minorities within existing 36 In agreement with the Muslim states, especially when pressed to the point of secession". illegitimate
internal State has duty for Muslim self-determination, a a under Islamic law to requirements deal equitably with all peoples within its jurisdiction and to guarantee the fundamental human rights of everyone so that the need for the minority's advocating secession may not in it Muslim State, Where claim such arises a would suggest the ruling authority's arise. failure to discharge its human rights obligations in respect of such minorities and would in discharge have to the obligations rather than for the minorities to secede. This is that case ideally in consonance with ensuring the fundamental rights of everyone within a State rather than accommodating secession that often leads to graver human rights violations. CERD had its General in Recommendation 21 be that governments should sensitive towards observed the right of minority
groups "to lead lives of dignity, to preserve their culture, to share
fruits in in to their the the government of the of national growth, and play part equitably 37 its The members are citizens". pertinent question of whether or not nonwhich of country
I See Hashmi, S.H., "Self-Determination and Secession in Islamic Thought", in Sellers, M., (ed. ) The New World Order, Sovereignty, Human Rights and the Self-determination of Peoples (1996) p. 117.
37SeeCERD GeneralRecommendation21, supra note 33 above,Par.5.
108
Muslim minority subjects of an Islamic State can as of right take part in the governance of 38 below. Article 25 the State, will be addressed under
EQUALITY
OF RIGHTS
BETWEEN MEN AND WOMEN
Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and forth in Covenant. the present to the set all civil and political rights of enjoyment women
Equality and non-discrimination are very fundamental principles of human rights. Both indicate They to taken a positive and negative each other. as equivalent principles are usually impartiality, have been justice described important and of component an means of ensuring liberties. "39 "the fundamental the "the of all other starting point man" and of rights of most as of rights has been the cause of all the 40 happened". It was the root cause of disturbances, insurrections and civil wars that ever It had also long been noted that "inequality
be inhuman it to the Holocaust cause of many the continues and and colonisation, slavery, international human in From human today. the that of rights context society exist treatments human beings born "(a)ll is based that the are recognition on law, the principle of equality 41 be in human in dignity to thus egalitarian are supposed free and equal rights and rights", in full The human beings by be to equality. principle of nonall enjoyed and nature discrimination is an extension of that, whereby the enjoyment of human rights shall be language, kind, distinction religion, political or colour, sex, such as race, "without of any s42 birth status. or other other opinion, national or social origin, property, Apart from the general rule of equality and non-discrimination established within 43 3, 26 law, Articles 2(1), human and expressly guarantee equality and international rights been has Article Reference ICCPR. to the already made under prohibits non-discrimination 2(1) above under the obligation of State Parties "to respect and to ensure.. .the rights 4 discrimination discrimination. The Covenant" in the... grounds of without recognised identical, i. "race, language, 26 2(1) Articles and e. sex, are general colour, and under 33Seepp. 221-223 below. 39SeeJusticeTanaka in the South WestAfrica case(1996) ICJ Reports,p.304. Seealso Bayefsky, A. F., "The Principle of Equality or Non-Discrimination in International Law" (1990) 11Human Rights Law Journal, p. 1. 40Paine,T., Works(ed.) Mendun, J.P., (1878) cited in McKean, W., Equality and Discrimination under International Law (1983) p.2. 41SeeArt. I UDHR. 42SeeArt. 2 UDHR, and Art. 2(1) ICCPR. (emphasisadded). 43SeeRamcharan,B., (1981) supra, note 18 above,p.246. 4ASeepp. 102-3 above.
109
religion, political or other opinion, national or social origin, property, birth or other status". Article 3 thus seems superfluous because it only underlines the prohibition of discrimination 45 between by guaranteeing equality of rights men and women. The HRC on grounds of sex has however restated Article 3's "important impact the enjoyment by women of the on ... 46 Covenant". This is due to the culture of discrimination human rights protected under the that had existed from time immemorial against women in all societies and which has placed in disadvantage in of many spheres of civil and political rights. positions women
Articles 2(1) and 3 are basically of an accessorycharacterto ensurethe equal enjoyment is Covenant, Article 26 the the while guaranteed under of a general character. The rights of Committee has observed however that the positive obligation of States "to ensure" under Article
3 "may have an inevitable
impact on legislation
or administrative
measures
dealt in designed Covenant but to than those the other with regulate matters specifically 47 in Covenant". We Article the 3 affect rights recognized shall adversely address may which between Covenant Article the of rights men and women under and address equality on now 26 later in respect of equality and non-discrimination generally. The HRC has issued General Comment 28 to update its former General Comment 4 on Article 3 in which it re-emphasised the need for ensuring the equality of rights between men "State factors impede that take the the stated parties should account of which and women and 48 in Covenant". The the of women and men of each right specified enjoyment equal Committee further observed that:
in the enjoyment of rights by women throughout the world is deeply in history including tradition, and culture, religious attitudes... States embedded historical, that traditional, ensure religious or cultural attitudes are not should parties before justify law to the to violations of women's right equality and to equal used Covenant States furnish of all rights. parties should appropriate enjoyment information on those aspects of tradition, history, cultural practices and religious attitudes which jeopardise, or may jeopardise, compliance with article 3, and indicate 9 have intend factors". taken they to take to or overcome such what measures "Inequality
The obligation under Article 3 is understood to require both measures of protection and legislation, for through women enlightenment and education to effect the affirmative action
°SSeee.g. Joseph,S., and Lord Lester, "Obligations of Non-Discrimination" in Harris, D.J., and Joesph,S., (eds.) (1995) 565. 564 32 at p. above supra, note "' SeePar. 1, HRC GeneralComment 28 on Equality of Rights betweenmen and women (Article 3) of 29/03/2000.U.N. Doc. CCPR/C/21/Rev.l /Add. 10, CCPR. " General Comment 4 Par. 3. 43See General Comment 28, Par. 6. 49ibid. Par. 5.
110
50 between Covenant. the rights men and women under the positive and equal enjoyment of This derives from the concept that total elimination of discrimination against women and the between form important international the total equality genders an aspect of of achievement human rights laws' Islamic law also recognises equality between men and women but does not advocate Article OIC between 6 Cairo Declaration the them. of equality states that: absolute "(a) Woman is equal to man in human dignity and has rights to enjoy as well as duties to perform; she has her own civil entity and financial independence,and the her lineage. to name and right retain (b) The husbandis responsiblefor the support and welfare of the family".
Mayer has argued that the guarantee of equality "in human dignity" under the OIC Cairo Declaration falls short of the guarantee of equality to the enjoyment of all civil and political 52 interpretation be human ICCPR. That dignity. A true the will with a narrow of under rights broad interpretation of human dignity will of course imply the enjoyment of all rights incidental to human dignity. The OIC Cairo Declaration has not in any case been subjected to interpretation its judicial The to HRC the ascertain quasi-judicial scope of provisions. or any has however observed that: "Equality during marriage implies that husband and wife should 53 in family". Article 6(b) the responsibility and authority within equally of the participate OIC Cairo Declaration may no doubt foreclose women's right of equality in responsibility is from debarred While family. for the the the wife not providing support and welfare within family under Islamic law, it is the husband that is legally bound to do so, as will be further in Article below. family 23 Equality is in Islam rights of women under recognised expatiated but Although "equal females not equivalent". the of males and are regarded as principle on identity in roles, especially within the imply total that not equivalence or a may equal, family. 54 Muhammad Qutb has observed that while the demand for equality between man is both beings human natural and reasonable, this should not extend to a and woman as 55 This functions. instances and creates of differentiation in gender transformation of roles discrimination law by to international Islamic that the threshold may amount of under roles 50SeeNowak, M., (1993) supra, note 5 above,pp.66-68.
s' See e.g. The Convention on the Elimination of all Forms of Discrimination Nowak, M., (1993) supra. note 5 above, p. 66.
Against Women (1979), 1249 UNTS 13; and
52Seee.g. Mayer, A. E., Islam and Human Rights (1999) p. 120 and, Mayer, A. E., "Universal versus Islamic Human Rights: A Clash of Cultures of a Clashwith a Construct?" (1994) 15 Michigan Journal of International Law, p. 306 at 330. s; General Comment 28, Par. 25. 54See e.g. al-Faruqi, I. R., and al-Faruqi, L. L., The Cultural Atlas of Islam (1986) p. 150. 55See Qutb, M., Islam the Misunderstood Religion (1978) pp. 129.
III
human rights law. Although the UN annotations on the draft of Article 3 on equal rights of difficult drafters "(i)t that to the the the share was of appreciation records women men and be legal traditions that overridden, that conditions which were could and systems assumption inherent in the nature and growth of families and organized societies could be immediately be by faith treaty that could altered, merely and religion of articles or changed, 56 the HRC now seems convinced that "in the light of the experience it has legislations", 57 it intends last 20 its in through to the push a universal years", over activities gathered Covenant traditional, the at aimed changing under gender equality of complete standard cultural and religious attitudes that subordinate women universally. Muslim scholars argue that Islamic law had, over fourteen centuries ago, addressed the dignified human discrimination the as a woman's position established and gender problem of 58 in life. However, being sharing equal rights with her male counterpart almost all spheres of due to factors such as patriarchal conservatism, illiteracy and poverty, women in most parts discrimination or the other. Mayer has form Muslim gender of still suffer one the world of between past interpretations of Islamic "the that conflicts most extensive observed in lie international human the area of women's rights", and norms rights and requirements law" in interpretations Islamic the "conservative of may result requirements many of that 59 in the enjoyment of civil and political rights. disadvantages for women, especially Apart from the prohibition of discrimination on grounds of sex in nearly all international human rights instruments, the Convention on the Elimination of all Forms of Discrimination Against Women60 specifically advocates equality for women and prohibits all forms of discrimination
against them. It is noteworthy however that even Muslim countries, such as
61 Tunisia, considered today as having adopted a most liberal approach in their interpretation 62 Convention. Women's This may not be law, to the Islamic entered reservations of Women's Convention. It aims at "a the the of approach revolutionary with unconnected family in in the in traditional of women the society and as role of men as well role change
See UN Doc. A/2929, supra, note 8 above, p. 62; See also Ramcharan, B. G., (1981) supra, note 18 above, p. 253ff. 57See General Comment 28, Par. 1. 58See generally e.g. Doi, A. R., Woman in Shari `ah (1989); El-Bahnassawi, S., Woman between Islam and World Legislations (1985).; and Al-Faruqi, L., Women, Muslim Society and Islam (1988); See also Chaudhry, Z., "The Myth of Misogyny: A Re-analyses of Women's Inheritance in Islamic Law"(1997) 61 Albany Law Review, 511 at 512-515. 19See Mayer, E. A., (1994) supra, note 52 above, p. 323 and 329 (See particularly n. 49 at 323). 60Supra note 3 above.
61The CEDAW Committee had describedTunisia "as a shining example for other (Muslim) countries, becauseof its See Islam". UN Doc. interpretation A/50/38, Par. 222. of programmative and progressive http:
//www. unhchr. ch/htnil/intlinst. htni [16/2/2001]. See also Cook, 62See UN Human Rights Treaty Database Website at: R., "Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women" (1990) 30 Virginia Journal of International Law, 643 at 688.
112
63Muslim States tend to be between full men and women". equality cautious and at achieving in that regard because both the society and family are very important institutions in Islam. The family and societal structures are based on principles prescribed by the religion, by individuals. Some family by law cherished rights and obligations are not and reinforced 64 family but impetuous No to private affairs of concern society. as entirely considered i. family in institutions, in Muslim States thus two these e. and society, can occur change its legality. Authorities debates Islamic serious on without prompting
in Muslim
States
be in Islamic to total turn thus prevent erosion upon norms, which cautious could would Islamic their credibility own undermine
from within. Even individuals either because of
for fear in flouting Islamic of reproach are cautious or societal often very convictions sincere important however is It Islamic to that observe evidence. some of the valid without norms by Article (elimination States, 7 Muslim CEDAW to reservations some such as of specific discrimination against women in political and public life), Article 9 (equal rights of men and (equality Article 15 before law, their the to change or retain nationality) and acquire, women in civil matters and in choice of residence and domicile) are on grounds of national laws and law The Islamic law Shari `ah Islamic specific on grounds of se. reservations or per are not those in respect of Article 2 and Article
16 of the Convention relating specifically
to
family matters. and marriage Unlike its former General Comment 4, the HRC has offered a broader view on equality in interprets its General Comment 28. It Article in between 3 the and women men of rights Covenant issue the the other substantive articles of and all obviously raises almost context of in following General Comment 28. law the Islamic paragraphs of with ¶ 13:
"States parties should provide information on any specific regulation of clothing to be worn by women in public. The Committee stresses that such regulations may involve a violation of a number of rights guaranteed by the covenant, such as article 26, on non-discrimination; article 7, if corporal punishment is imposed in order to enforce such a regulation; article 9, when failure to comply with the regulation is punished by arrest; article 12, if liberty of movement is subject to such a constraint; article 17, which guarantees all persons the right to privacy without arbitrary or unlawful interference; articles 18 and 19, when women are subjected to clothing requirements that are not in keeping with their religion or their selfexpression; and, lastly, article 27, when the clothing requirements conflict with the culture to which the woman can lay a claim. "
63See10 Preambular paragraph of CEDAW (emphasis added), supra, note 3 above. "See generally `Abd al `Ati, H., The Family Structure in Islam (1977).
113
¶ 14:
"With regards to article 9 States parties should provide information on any laws or practices which may deprive women of their liberty on an arbitrary 65 house. by " basis, the such as confinement within or unequal
¶ 16:
"As regards article 12, States parties should provide information on any legal freedom to restricts women's right of or any practice which provision movement as, for example, the exercise of marital powers over the wife or daughters, de facto legal or requirements which over adult parental powers prevent women from travelling such as the requirement of consent of a third party to the issuance of a passport or other type of travel documents to an adult woman. States parties should also report on measures taken to eliminate such laws and practices and to protect women against them, including 66 domestic to remedies" available reference
¶ 18
"States should inform the Committee...whether women may give evidence 67
as witnesses
on the
same
terms
as men...
"
¶ 24:
"... the right to choose one's spouse may be restricted by laws or practices that prevent the marriage of a woman of a particular religion with a man who professes no religion or a different religion. States should provide information on these laws and practices and on the measures taken to abolish the laws and eradicate the practices... It should also be noted that equality of treatment with regard to the right to marry implies that polygamy is incompatible with this principle. Polygamy violates the dignity of women. It is an inadmissible discrimination against women. Consequently, it should be definitely abolished wherever it continues to exist. i68
¶ 25:
"... Equality during marriage implies that husband and wife should participate equally in responsibility and authority within the family. "69
¶ 26:
"States must also ensure equality in regard to the dissolution of marriage... The grounds for divorce and annulment should be the same for men and have inheritance Women equal also rights to those of men should women... is by death dissolution the the caused marriage of one of the of when spouses.9M
¶ 27:
"In giving effect to recognition of the family in the context of article 23, it is important to accept the concept of the various forms of family, including "" their children... and unmarried couples
The Committee had already expressed concern on some of the above issues in its concluding
observations on the reports of some Muslims
States. In its concluding
in Iran 1993 Committee Republic had Islamic "the the that the of observed on observations do dress harassment the women who conform of not with a strict code; need and punishment for women to obtain their husband's permission to leave home; their exclusion from the 65See p. 131 below. 66See p. 136 below. 67See p. 141 below.
"See pp.177 and 183below.
0 See pp. 111 above and n. 446 below. 70See pp. 185 and 188 below.
114
magistracy; discriminatory
treatment in respect of the payment of compensation to the
families of murder victims, depending on the victim's gender and in respect of the inheritance in the women; prohibition against practice of of sports public; and segregation from rights 72 incompatible in Article 3 ICCPR. transportation" Also on the were with of public men Sudan in 1997 the Committee expressed concern at the "official
enforcement of strict dress
in for public places, under the guise of public order and morality, and at women requirements inhuman punishment imposed for breaches of such requirements, (and that) (r)estrictions on the liberty of women under the Personal Status of Muslims Act, 1992 are matters of concern 73 Covenant". 3,9 12 of the and under articles
The general regulation on women's clothing under Islamic law would be examinedhere, issues in General Comment the 28 above the other raised quoted of paragraphs of while each be ICCPR Under the Islamic law, the under relevant articles of cited. addressed would for human dignity. is It for the of serves enhancement generally as cover private clothing 74 hazards. Due to the prohibition of and protection against atmospheric adornment parts, both law, fornication Islamic dress to men and under women are and required adultery body in their to seductively not expose sensuous parts of and public. Specifically, modestly the Qur'an directs women to "draw their veils over their bosoms" and not to publicly display 75 for "except Opinions differ regarding the beauty what must ordinarily appear". their in division juristic "what must resulting ordinarily appear", of views as to the exception 76 While the Sha fi `i in law. Islamic and the HanbalI schools of extent of women's covering jurisprudence
hold that women must cover up their whole person without exception in
jurisprudence Hanaji MalikI face, the the the hands and schools of allow exposure of public, 77 feet Many Muslim the to the thinkers and the to and up ankles. contemporary wrists up 78 disagreed have the jurists with view on complete covering of women. On one hand, Muslim follow in the today the view that allows exposure of the face, parts of world many women
71Seep. 172 below. 72Concluding Observationson Islamic Republic of Iran (1993) UN Doc. CCPR/C/79/Add.25., Par. 13. Seefurther Chapter 8 on the Islamic Republic of Iran. 73Concluding Observationson Sudan,(1997) UN. Doc. CCPR/C/79/Add.85. Par. 22. Seefurther Chapter 8 on Sudan. `See e.g. Q7:86 and Q16:81. Seeright to clothing under Article 11 of the ICESCR in the next chapter. 's SeeQ24:30-31. 76Seee.g. Ali, S.S., "Women's Rights in Islam: Towards a Theoretical Framework", (1997-98) Yearbookof Islamic and Middle Eastern Law, Vol. 4., p. 117and referencescited there in respectof the differencesof opinion with regardsto the in Islam. women of veiling 77See e.g. Darwish, M. H., Fasl al-Khitäb fi Mas'alah al-Hyäb wa al-Nigäb (Arabic) (1987) p. 51; See also Stowasser, B. F., Women in the Qur'an, Traditions, and Interpretation (1994) pp. 93-94 and Al-Zuhayli, W., Al-Figh Al-Islami wa-Adillatuh (Arabic) (1997) Vol. 1, pp. 743-754 and al-Juzayri, A. R., al-Fiqh ala Madhähib al- Arba'ah (Arabic) (1996) Vol. 1, p. 184. 8 See e.g. Rahman, F., Status of Women in the Qur'an in Nashat., G., (ed. ) Women and Revolution in Iran (1983). See also in Federal Shariat Court Ansar Burney v. Federation of Pakistan (1983) PLD (FSC) 73 at Pakistan judgement the of the . , 75ff.
115
hand, On Muslim life daily the hindrance to their feet, other and careers. hands and without States such as Saudi Arabia and Afghanistan enforce the rule that women must cover up in liberty This in the ways and sometimes many of women restricts public. completely 79 first liberate Islam homes. While the to four their women was the to them of walls curtails it is in, inhuman they from hundred the were conditions years ago more than fourteen liberties today's hand if world and of many rights enjoy and hypocritical acquire men on one but Shari `ah, interpretations the the on other of through modernist and constructive often juristic the the liberties views of upon the stagnated of women hand consider and rights full had Muhammad that Prophet law. The Islamic women are stated classical schools of 80 Women therefore to is equally entitled are of equality. an expression which sisters of men for the to liberties today's principles of public respect subject world, of the rights and 81 law. Islamic both to men and women under morality as applicable
THE RIGHT
TO LIFE
Article 6 1.
Every human being has the inherent right to life. This right shall be protected by law. No his life. deprived be of arbitrarily shall one
2.
In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time the to the provisions of present the contrary not and the of crime commission of Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
3.
When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any Convention the the the from on of provisions under assumed obligation any way Prevention and Punishment of the Crime of Genocide.
4.
Anyone sentenced to death shall have the right to seek pardon or commutation of the death be in the Amnesty, may granted all sentence of of or commutation pardon sentence. cases.
5.
Sentenceof death shall not be imposed for crimes committed by personsbelow eighteen be carried out on pregnantwomen. shall not and age of years
6.
Nothing in this article shall be invoked to delay or to prevent the abolition of capital Covenant. Party by State the to present any punishment
79See Levitt, M. A., "The Taliban, Islam and Women's Rights in the Muslim World" (1998) 22 The Fletcher Forum, p. 113. 80See Yammani, M., "Muslim Women and Human Rights: The New Generation" Paper delivered at the Cairo Conference 9`h 1997) 2. (Dec. 7th Law, Rule p. the of Democracy and on 81See e.g. Qutb. M., Islam the Misunderstood Religion (1978) pp. 118-164.
116
Life is mankind's most valuable asset from which all other human possibilities arise. There is thus agreement on the fact that the right to life is the supreme and most fundamental 82 be human human right without which all other meaningless. Many scholars are rights will 83 is international law. isjus It life to that a non-derogable right cogens under right of the view 84 is a right which should not be "(i)t has HRC that the ICCPR, stated the and under 85 interpreted narrowly". Article 6(1) provides for the sanctity of human life and it imposes a positive obligation life Apart from life to take the State to arbitrarily. not the obligation and a negative protect on duty to prohibit and punish criminal homicide as a means of protecting the right to life, the HRC has interpreted the scope of the States' obligation under Article 6(1) to include, inter duty "the to other acts of genocide and mass violence wars, acts of prevent supreme alia, 86 the duty "to take all possible measures to reduce infant life"; loss of causing arbitrary in life to increase measures especially adopting eliminate expectancy, and mortality 87 the prohibition of "production, testing, possession, and epidemics"; malnutrition 88 and also making effort to "strengthen deployment and use of nuclear weapons"; 89 international peace and security". The right to life under the Covenant is however non-absolute. Article 6(1) only prohibits is defined by "arbitrarily" Covenant, life. While the deprivation the term not of the arbitrary 90 is limited. life by State It must be in deprivation the strictly of it generally connotes that the facts. The State law due the on proportionate and strictly full accordance with process of 91 its forces law killing by and enforcement agents. security arbitrary prevent also must
92See e.g General Comments 6 and 14. See also Nowak, M., (1993) supra, note 5 above, p. 104; Ramcharan, B. G., "The 297 311 314.; Dinstein, Y., "The Right Life, Physical Law Review International to Netherlands (1983) at Life" Right to Integrity and Liberty" in Henkin, L., (1981) supra, note 6 above, p. 114. See also Art. I Universal Islamic Declaration of (1995) Rights Civil Liberties 9; Charter Fundamental M. S., Islam's Chaudhry, 1981; p. al-Ghazali, M., Rights of and Human Nuqüq al-Insän Bayn T'älIm al-Islam wa I'län al-Umam al-Mutahidah (Arabic) (1993) p. 245; Doi. A. R., Shari'ah: The Islamic Law, (1984), p. 229.
"See Ramcharan,B.G., (1983) supra, note 82 above,pp. 307,308,311 ff; Higgins, R., "Derogations under Human Rights Treaties", (1976/77) 48 British Yearbookof International Law, 281 at 282 and further referencestherewith. 84See Art. 4(2).
BSGeneral Comment6, Par. 1. General Comment6, Par. 2. General Comment 6, Par. 5; cf. Dinstein, Y., (1981) supra, note 82 above,pp. 115-116for the view that the right to life is killing does include issues death lack from and not arbitrary such as guarantee against against of a civil right safeguarding Nowak differently infant interpretation is due "an that to mortality. argues such of restrictive reduction or medical attention in Art. 6(l). SeeNowak, M., (1993) supra, note 5 above,p. 106n. 16. third the sentences and second improper merging of 11General Comment 14, Par. 4. This opinion of the HRC createdsomecontroversyon the part of many Statessuch as USA, UK etc. " SeeGeneralComment6 Par. 2 and 5 and GeneralComment 14.
coSee UN Doc. A/2929 supra, note 8 above, p. 83, Par. 3, where it is stated that the term "arbitrarily" was explained to mean both "illegally" and "unjustly" during the drafting. 91See Joseph, Schultz, and Castan (2000) supra, note 23 above, p. 108ff; and General Comment 6, Par. 3. See also the cases Colombia, Communication No. R. 11/45 (5 February 1979), UN Doc. Supp. No. 40 (A/37/40) at de Guerrero Suarez v. of 137 (1982); and Rickly Burrell v. Jamaica, Communication No. 546/1993, UN Doc. CCPR/C/53/D/546/1993 (1996).
117
Both the substantive provision
and general interpretation
of Article
6(1) are in
law. Islamic There are many verses of the Qur'an and Traditions of the with concordance Prophet Muhammad that acknowledge the sanctity of human life, enjoin its protection and deprivation. Shari its The `ah provisions on the sanctity and protection of arbitrary prohibit human life are so fundamental and emphatic that they cannot be denied. The following Qur'anic verses are examples in that respect. "Take not life which God has made sacred, except by way of justice and law; thus does He (God) command you that you may learn wisdoms92 "Nor take life - which God has made sacred - except for just cause. And if anyone is have his heir We given authority (to demand Qisäs [retribution] or slain wrongfully, to forgive): but let him not exceed bounds in the matter of taking life: for he is helped (by the Law). "93 "... if anyone slew a person - unless it be for murder or for spreading mischief in the land - it would be as if he slew humanity as a whole: and if anyone saved a life, it 94 he humanity " be if saved as a whole. as would
The above verses apply to the State as much as to individuals.
Also in his oft-quoted
his farewell Prophet Muhammad is the the end of at pilgrimage, given reported to sermon have declared, inter alia, that: "Verily your lives and properties are sacred to one another till Day In Tradition he is Lord Resurrection". the another on of also reported to your you meet have warned that: "The first offences to be judged by God between mankind on the 95 " be lives. day judgement will unlawful taking of Based on the above injunctions, Islamic jurists are unanimous on the sacredness of human life and that there is an obligation on the ruling authority in the Islamic State to 96 individual. life The life in Islamic law to the of every protection of right also protect includes the prohibition of suicide, thus shutting out the notion of a "right to die" under 97 Article 2 of the OIC Cairo Declaration thus provides that: law. Islamic
(a) Life is a God-given gift and the right to life is guaranteed to every human being. It is the duty of individuals, societies and states to protect this right from any
Q 6: 151. 93Q 17:33. 9aQ 5:32. 95Reported by al-Bukhari and Muslim. Seeal-Juzayri, A. R., Kitäb al-Fiqh Ala al-Madhähib al-Arba'ah (Arabic) (1997) Vol. 5., p.218. 96See e.g. ibid., p. 214 - 223; and al-Ghazali M., (1993) supra, note 82 above, p. 245. `° See. e.g. Ahmed, B. D. and Umri, J., "Suicide and Euthanasia: Islamic Viewpoint", in Mahmood, T., et al., (eds.) Criminal Law in Islam and the Muslim World (1996) pp. 164 -177.
118
violation, and it is prohibited to take away life except for a Shari'ah prescribed reason. (b) It is forbidden to resort to such means as may result in the genocidal annihilation of mankind. (c) The preservation of human life throughout the term of time willed by God is a duty prescribed by Shari"ah. (d) Safety from bodily harm is a guaranteed right. It is the duty of the state to is breach it Sharia-prescribed " it it to prohibited without a reason. and safeguard
The "Shari `ah prescribed reason" proviso on the right to life in the Cairo Declaration is in respect of crimes attracting the death penalty under Islamic law, which must be strictly in in is law. "except by due This terms the the of reflected process way of accordance with justice and law" and "except for just cause" in the Qur'anic verses on the sanctity and 98 life human cited above. protection of This brings us to the exception to the right to life under the ICCPR in respect of the death penalty. Although Article 6(1) does not prohibit the death penalty, Articles 6(2) to 6(6) its imposition. death Five the specific restrictions on on penalty may place some restrictions be identified from the provisions. The first is that the death penalty may not be imposed except only for the most serious 99 in law force in the time the the the at of commission of with crime. accordance and crimes Thus while Article 6 does not abolish the death penalty, it restricts its imposition to the "most for State has Parties HRC to the their the review stated need criminal and crimes" serious 1°° is however not defined in the "most The term that to serious crimes" laws effect. Covenant. During the drafting of this provision of the Covenant, the phrase `most serious `serious lacking differed the "was concept of as precision, since crimes' criticised crimes' from one country to another."101 The HRC has however observed that this expression "must 102 be death that the to be read restrictively penalty should a quite exceptional measure". mean 103 104 in "robbery, dangerous has traffic toxic The Committee concluded that wastes, abetting 105 106 drug-related multiple evasion of military service, offences, property offences, suicide, 107 homosexual by by force, third theft a act, embezzlement officials, committing apostasy,
"See note 92 above. 99 Art. 6(2).
SeeGeneralComment 6, Par. 6.
'01 See UN Doc. A/2929, supra, note 8 above, p. 84, Par. 6; See also Dinstein, Y., (1981) supra, note 82 above, p. 116. 102General Comment 6, Par. 7.
103Concluding Observationson Republic of Korea (1992) UN Doc. A/47/40,122-4, Par.9. 1°4Concluding Observationson Cameroon(1994) UN Doc. CCPR/C/79/Add.33, Par.9. 10S Concluding Observationson Sri Lanka (1996) UN Doc. CCPR/C/79/Add.56, Par.14. 11 Concluding Observationson Iraq (1997) UN Doc. CCPR/79/Add.56, Par.11. 107Concluding Observationson Sudan(1997) UN Doc. CCPR/C/79/Add.85, Par.8
119
crimes of an economic nature, adultery, corruption, and `crimes that do not result in the loss of life"'108are all not most serious crimes. Thus, according to Joseph, Schultz and Castan "it intentional killings that only or attempted killings, or the intentional infliction appears '09 harm, death bodily 6(2)". the may permissibly attract penalty under article grievous
of
Under traditional Islamic law the death penalty is prescribed basically for the offences of The apostasy, armed/highway robbery. adultery, views of the HRC above puts all murder, these offences except murder outside its definition of "most serious crimes" under the Covenant. The argument of Muslim jurists and scholars is that the manner and circumstances in which the stated offences must be committed to attract the death penalty makes them very 110 law. is Islamic Murder under offences on retaliatory grounds of life for life. serious Armed/highway robbery attracts the death penalty only if it results in the death of the victim. Adultery basically requires the unanimous eye-witness evidence of four sane Muslim adult death For to the to the sexual act. apostasy attract penalty, many Islamic male witnesses it in define the context of sedition or treason against the State, and not merely now scholars 111 as apostasy simpliciter. The HRC has also observed that the provisions of Article 6(2) and 6(6) suggest the 112 death international law. the There is however no desirability of abolishing penalty under States the amongst of the world yet on the abolition of the death penalty. While unanimity "abolitionist States" States considered as others are considered as "non-abolitionist are some States" in respect of the death penalty. Muslim States generally belong to the group of "nonabolitionist
States." Apart from the Republic of Azerbaijan, no other Muslim
State has
become death Party Second Optional the Protocol (OP2) to the penalty or to the a abolished 113 in 1989 death Since the ICCPR adopted specifically aimed at abolishing the penalty. Qur`an specifically prescribes the death penalty as punishment for certain crimes, Islamic jurists would consider any direct legislation against its legality as being outside the scope of 1 4 Shari `ah. legislation the human under
1°$Concluding Observationson the Islamic Republic of Iran (1995) UN Doc. CCPR/C/79/Add.25, Par.8. SeeJoseph, Schultz and Castan,(2000) supra note 23 above,p. 120. t° SeeJoseph,Schultz and Castan,(2000) ibid. 110Seee.g. al-Juzayri,A. R., (1997) supra, note 95 above,Vol. 5. 111Seefurther pp.162-64below. 112General Comment6, Par. 6. Seealso Robertson,A. H., "The United Nations Covenanton Civil and Political Rights and The EuropeanConventionon Human Rights" (1968-69) 43 British Yearbookof International Law 21 at 31. 1" Azerbaijan accededto the OP2 on 22 January1999.SeeUN Doc. A/RES/44/128. II ' See e.g. Reference to the Sudanese Parliament on abolition of the death penalty at note 17 above. See also al-Qaradawi, Y., (1984) supra, note 16 above and main text thereof; and `Uthmän, M. F., Huqüq al-Insän Bayn al-Shari'ah a! -Islämiyyah (1982) (Arabic) 67-68. p. al-Garbt" wa al-Fikr al-QänünI
120
Islamic jurists often cite the Qur'anic verse which says: "In the law of gisäs (retribution) there is (saving of) life for you, 0 people of understanding; that you may restrain yourselves" 115,to argue that the death penalty for murder, is itself a legal protection for the right to life 116 it. life States impugn Most Muslim it to to the thus abolish right who apply will and Islamic criminal law only try to avoid the death penalty through either procedural or instead Shari direct `ah the of available within prohibition provisions commutative
of it.
Islamic law demands strict evidential requirements for capital offences. A strict compliance instance, law lead, for Islamic to payment of the of would often evidential requirements with blood-money for murder, and discretionary (ta'air) punishments for the other capital offences in place of effecting the death penalty.
In the case of murder, the Shari `ah allows for the
by heirs in blood lieu victim the to the the of offender of money payment of the of alternative death penalty. Thus Sudan stated during consideration of its second periodic report on the ICCPR that: "... since 1973... execution had been avoided in cases involving
the death
had higher because President the the the court or not confirmed sentence or either sentence, 117 instead. diya been The Prophet Muhammad is also had because blood money - the paid" death be have that the to penalty should avoided as much as recommended reported 118 possible. The second restriction on the death penalty under Article 6 is that no deprivation of life for instance Covenant, fair hearing be thus be to the the a provisions of must contrary must ' 19there must be no discrimination in capital punishment120 and the methods of guaranteed, 12' inhuman degrading Also torture to to cruel, or punishment. amount or not must execution deprivation of life must not be contrary to the Convention on the Prevention and Punishment 122 imposed death sentences that may constitute genocide (as did judicially thus Genocide, of '23 the Nazi tribunals) are prohibited. Islamic law also emphasises a fair hearing, especially in capital-offence cases as will be further elaborated under Article 14 below. Islamic jurists however differ on the question of discrimination in capital punishment. The Shäfi `i and the Hanbali schools of jurisprudence hold that a Muslim will not be executed for the murder of a non-Believer. They base their us Q2: 179. 116See e.g. Uthmän, M. F., (1982) supra, note 114 above, p. 68; and Ibn Rushd al-Qurtubi, M., Bidäyah al-Mujtahid Nihdyah al-Muqtasid (Arabic) (10`h Ed., 1988), Vol. 2, p. 400.
wa
'" SeeHRC Summary Recordof the 1628`hMeeting: Sudan; U.N. Doc. CCPR/C/SR.1628of 02 October 1998,Par.15. I's Seee.g. Al-Zuhayli, W., (1997) supra, note 77 above,Vol. 7., p.5307. 119Pursuantto Art. 14 ICCPR. '20 Pursuant to Art. 2(1) and Art. 26 ICCPR. 121Pursuant to Art. 7 ICCPR.
122Art. 6(2) and (3). 123SeeNowak, (1993) supra, note 5 above,p. 108 and pp.116-117.
121
in is Prophet Tradition the which reported to have said that: "A Believer will not view on a be executed for a non-Believer". The Mäliki school holds similar view with a proviso that if the murder is brutal and for the purpose of taking property then the Muslim will be 124 The HanaJl school however makes no such religious discrimination in capital executed. hold Muslim be for Hanafis The that the murder of a nona will executed punishment. 125 This is based on the lack of a Qur'anic basis for such believer and vice versa. discrimination
and the specific Qur'anic reference to the rule of
"life
for life" in one
126 The Hanafis argue that the other three schools had interpreted the Prophet's verse. Tradition out of context to arrive at their view. The Hanafi jurists further contend that since Islamic law does not discriminate between Muslims and non-Muslims in the punishment for in the the case of murder. The Hanafis further same rule must apply theft and other offences in Muhammad Tradition Prophet the their with another which position was reported support to have ordered the execution of a Muslim for killing a non-Muslim. The first three schools 127 The Hanafi is this that was a special case and an exception. view more consistent contend human beings Prophet Traditions the of on equality of and also compatible with with other the principle of non-discrimination under the Covenant. The prohibition
of genocidal capital punishment under the Covenant is also in full
life law. Article Islamic 2(b) Cairo Declaration the the sanctity of under of with concordance is forbidden "It in to to that: the genocidal resort such means as may result provides annihilation of mankind". The third restriction is that the death penalty can only be carried out pursuant to a final 128 by This proviso also aims at preventing the judgement rendered a competent court. justice life deprivation due of and ensures as well as compliance with process of arbitrary 129 justice full is in Islamic law. the This As law. agreement with principle of under criminal Qur'an "Take life God the has that: states clearly above, not which stated made earlier law; does by (God) He justice thus way of and command you that you may except sacred, 130 Islamic law differentiates the judgement (gadä) of a competent court from learn wisdom". jurisconsult by (fatwä) legal a given opinion a
(mufti) on a particular issue. A final and
"See al-Juzayri, A. R., (1997) supra, note 95 above,Vol. 5, pp.244-245 and Ibn Rushdal-Qurtubi, M., (1988) supra, note 116 above,Vol. 2, p.399. its ibid. Seealso Al-Zuhayli, W., (1997) supra, note 77 above,Vol. 7., p.5671. 11 Q5:45. 1T7Seeal-Juzayri, A. R., (1997)supra,note 95 above,Vol. 5, p. 246 and Ibn Rushd al-Qurtubi, M., (1988) supra, note 116 above, Vol. 2, p.399. 128Art. 6(2).
129See generally e.g. Awad, A. M., "The Rights of the Accused under Islamic Criminal Procedure", in Bassiouni, M. C., (ed. ) The Islamic Criminal Justice (1982) 91-107.
130Q 6: 151. Emphasisadded.
122
be by judge judgement (gadä) (gädi) can only given a competent after the full executable consideration of a case in accordance with due process of the law.
A fatwä, on the other
hand, is only a legal opinion given by a mufti (jurisconsult), which is neither legally binding 131Only competent judges may consult a mufti for legal opinion to help them nor executable. law, before Thus Islamic has decision legal the matters court. under on a mufti no a reach legal competence to give a binding fatwä
imposing the death penalty or any other
law first for Islamic being by the tried under without case any offence a punishment competent court and affording 132 law. accordance with the
the accused person opportunity
to defend himself
in
The fourth restriction is that anyone sentenced to death shall be entitled to seek pardon be granted amnesty, pardon, or commutation of of sentence and may or commutation 133The entitlement to pardon, commutation of sentence or grant of amnesty arises sentence. judgement by highest final It the the and conviction court. relates to the execution after only fair due law. The lies trial the of after a and process power normally sentence with the of Head of State. It is a prerogative act of clemency and thus subjective to other non-legal and non judicial
considerations. It stands as a last resort by which a death penalty may be
implement in death State Heads that the the still of countries penalty may whereby avoided, death the their sentences. avoid execution of power within In Islamic law pardon or amnesty may be granted by the Ruler under the principle of haqq al-'afw
'an al-'uqübah (i. e. the right to pardon from punishment). The State may
is `zir According the that to victim's punishment provided right not undermined. any pardon to the Hanafi school, hudüd punishments cannot be pardoned by the State because they are the "rights of God".
The other schools however hold that only the hudüd punishment for
judge's be by State decision. Their in the theft after a not pardoned may argument zinä and the case of zinä is that the difficulty of proving zing through eyewitnesses is enough if be heinous the to amnesty an offender crime requiring no additional could so on mitigation in broad four Also, the the right to commute the the of male witnesses. glare offence commit death penalty in homicide cases (gisäs) for blood money (diyah) lies principally 134 heirs. victim's
with the
131Seee.g. al-Magdis?,B.A. R. al-'Udah Sharh al-'Umdate (Arabic) (5`h Ed., 1997)601. 12 Seee.g. Karnali, M. H., Freedomof Expressionin Islam (1997) 296-297 for views of Islamic Scholarsand Institutions on this point in relation to the SalmanRushdieaffair. 133Art. 6(4).
134Seeal-JuzayrI,A. R. (1997) supra, note 95 above,Vol. 5, pp. 224 -227.
123
The fifth restriction is that the death penalty shall not be imposed for crimes committed '35 be by persons below eighteen years of age and shall not carried out on pregnant women. By this restriction the Covenant totally prohibits the sentencing of juveniles less than 18 including "most In for death the the to serious crimes". case of whatsoever, any crime years for but death "most be the the to they serious crimes", sentenced may women, pregnant delivery Both be the the of pregnancy. cases are a until after carried out not shall sentence innocence the of childhood. consequence of appreciating
The execution of the death penalty against pregnant women is also prohibited under Islamic law. The same exemption extends even to women breast-feeding a child until the death be liable Islamic A to is two penalty also not under child will years. after weaned child law based on a Tradition in which the Prophet Muhammad stated, inter alia, that a child is 136 The only difference being that it is he free from responsibility until attains maturity. law before 18 Islamic the for to age of years. maturity under attain a child possible Finally, the HRC has observed in relation to the right of women to life under Article 6 that: "When reporting on the right to life protected by Article 6 ... States parties should help by State information to the taken women prevent on any measures give do have lifethey to that to not undertake ensure and pregnancies, unwanted 137 threatening clandestine abortions".
Similarly, the Committee has expressed in many of its concluding observation of States' leads "criminalization to ICCPR that the unsafe abortions which of abortion on reports 1 38 interpreted has Committee The high the for not also of maternal mortality". rate a account Schultz leading Joseph, include Castan to life the that to and to of unborn child, right have indicated that the prohibition of abortion is HRC "(c)ertainly, that comments conclude 139 While Islamic law breach ICCPR than the likely the to of abortion". permissibility more does not prohibit the prevention of pregnancy140it prohibits abortion except for valid reasons '4' life. On debate the the the woman's of pregnancy endangers of continuance such as where Committee freedom CEDAW "unwanted the to emphasises pregnancy", of an what amounts 135Art. 6(5). '3' See al-Juzayri, A. R. (1997) supra, note 95 above, Vol. 5, p. 269. General Comment 28, Par. 10.
"g Seee.g. Concluding Observationson Cameroon(1999) UN. Doc. CCPRJC/79/Add.116,Par.13. Seealso Joseph,Schultz 135-137. 23 (2000) Castan above pp. note supra, and 139Joseph,Schultz and Castan(2000) ibid., p.474-475.
10 Muslim jurists however hold divergent views on reasons and methods of prevention. See e.g. Musallam, B. F., Sex and Society in Islam (1986); and Omran, A. R., Family Planning in the Legacy of Islam (1992).
"' Seee.g. Omran,A. R., ibid. p.8-9.
124
142Muslim States are mostly anti-abortion States who may consider for women. choice life demand the to the of an mother as violating right of a pregnant abortion simply on be being for An the that unborn child would argument anti-abortionist unborn child. "unwanted" is no justification
to be killed. An alternative middle way would be adequate
State provision of social help for both mothers carrying "unwanted pregnancies" and for the 143 birth. "unwanted children" after
PROHIBITION
OF TORTURE
OR CRUEL, INHUMAN PUNISHMENT
OR DEGRADING
TREATMENT
OR
Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or his free be In consent to medical or shall subjected without no one particular, punishment. scientific experimentation.
The prohibition of torture is quite well established and is considered as a peremptory 144The ICCPR does not define torture, but Article 1(1) of the law. international norm of 145 definition (CAT) Torture of torture which accepted Convention against a widely contains provides that: "For the purposes of this Convention, (i. e. CAT) the term "torture" means any act by intentionally inflicted is or physical mental, or suffering, whether pain severe which from him information for third or a person or as obtaining such purposes on a person has is he him for third committed or a person or an act punishing a confession, him intimidating having third or a person, or or coercing committed, or of suspected for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public does in include It capacity. not pain or acting an official person official or other incidental lawful from, inherent in to or sanctions". only suffering arising
Torture is usually distinguished from "cruel, inhuman or degrading treatment and intensity In Ireland intent, UK, the or suffering. v. and of pain severity on punishment" European Court of Human Rights observed that the term "torture" attaches "a special stigma 146 " Also in Tyrer inhuman treatment deliberate causing very and cruel suffering. serious to
142SeeJoseph,Schultz and Castan(2000) supra, note 23 abovep. 137. 143SeeRights of the Child in Article 24 below.
'" See e.g. American Law Institute, Restatement (Third) of Foreign Relations Law, Par.702; and O'Boyle, M., "Torture and Emergnecy Powers under the European Convention on Human Rights: Ireland v. The United Kingdom" (1977) 71 American Journal of International Law 674 at 687-688.
j" 1465LINTS 85. Seealso Art. 7(2)(E) of the Statuteof the International Criminal Court. UN Doc. A/CONF. 183/9of 17 July 1998. 1d6(1978) Eur. Crt. Human Rights Reports, Series A, No. 3, Par. 167.
125
147the same court held that intensity of suffering justifying the use of the term UK, v. . "inhuman" is higher than in what may be described as "degrading". Inhuman relates to pain is humiliation. degrading Thus to there relates some presumed "scale of while and suffering inhumanity degradation, in to which commences with mounts suffering and aggravation 148 " Also is level lie the torture. treatment to of cruel presumed attains ultimately 149 inhuman Thus even though a particular act "somewhere between conduct and torture". it inhuman being to torture, as may still amount either, cruel, categorised or a may escape degrading treatment which are all prohibited under the Covenant. The underlying aim of the integrity is both dignity "to the the and physical and mental protect provision 150 individual".
of the
The prohibition of subjecting anyone to medical or scientific experimentation without his or her free consent under Article 7, "was intended as a response to the atrocities such as 51 during World War in 11"' "(n)ormal thus camps and excludes concentration committed '52 in interest health". the the treatment of patient's medical Based on the dignified nature of the human person under the Shari 'ah, there is no conflict
under Islamic law with the general prohibition
of torture or cruel, inhuman or
degrading treatment or subjecting a human being to scientific experimentation without 153There are many verses of the Qur'an and Traditions of the Prophet that enjoin consent. Bassiouni to oppression even animals. cruelty and observed that the and prohibit compassion '54 in hundred human beings two Qur'an warns against persecution of and ninety-nine places. The Prophet was also reported to have warned against torture saying that: "God will torture, in the hereafter, those who torture people in this life. "155 And when he entrusted anyone with instruct State Prophet him thus: "Give glad tidings and do not the the would the affairs of terrorise, give ease and do not molest the people. " Following this humane principle of the Shari `ah, Caliph Umar ibn Abdul Aziz'56, was reported, in reply to a request of one of his due to torture those to tax to the public permission who refused sought pay who governors treasury, to have stated as follows: 147(1978) Eur. Cr!. Human Rights Reports, Series A, No. 28, Par. 30.
148SeeDinstein, Y., (1981) supra, note 82 above,pp. 123- 124; Seealso GeneralComment7, Par. 2. '49 ibid.
150See General Comment 7, Par. 1, and General Comment 20, Par. 2. 'S' See UN Doc. A/2929, p. 87, Par. 14.
152SeeNowak, M., supra, note 5 above,p. 139. 153Seeal-Saleh,O.A., "The Rights of the Individual to PersonalSecurity in Islam", in Bassiouni,M. C., (ed.) TheIslamic Criminal Justice System(1982) p.72.
11 Bassiouni, M. C., "Sources of Islamic Law, and the Protection of Human Rights in the Islamic Criminal Justice System", in Bassiouni, M. C., (ed. ) The Islamic Criminal Justice System (1982) p. 3 at 19.
issSeeal-Saleh,O.A., (1982) supra, note 153 above. " He ruled under the UmayyadCaliphatebetween717 -720CE.
126
"I wonder at your asking permission from me to torture people as though I am a shelter for you from God's wrath, and as if my satisfaction will save you from God's anger. Upon receiving this letter of mine accept what is given to you or let him give an oath. By God, it is better that they should face God with their offenses than I 157 for have God torturing to them". meet should
Muslim jurists thus generally agree that torture or cruel and inhuman treatment or 158 is during interrogation Article 20 of the OIC Cairo the offenders. prohibited of punishment Declaration thus provides that: "It is not permitted to subject (an individual) to physical or psychological torture or to any form of humiliation, cruelty or indignity. Nor is it permitted to subject an individual to medical or scientific experimentation without his consent or at the risk of his health or of his life. Nor is it permitted to promulgate emergency laws that would provide executive authority for such actions. "
The difference however lies in the interpretation of what amounts to torture or cruel, inhuman or degrading punishment. The HRC has plainly stated that punishments under Islamic law such as amputation, flogging and stoning are incompatible with Article 7 of the 160 Muslim States have The main pragmatic ICCPR159, to which some consistently objected. consistently advanced by Islamic jurists for those punishments under Islamic 161 deterrent is their law, nature. The HRC however rules out any limitation or justification in
justification
Article 7.162 The European Human Court Rights has held Article 3 of also of under respect in Convention Tyrer. v. UK that: "A punishment does not lose its degrading European the it is... just because deterrent "163 to The difficulty effective or an aid crime control. character here for Islamic legalists is that flogging and amputation for example are specifically legal for in Qur'an the punishments certain offences as and thus considered as prescribed divine injunctions. Thus the representatives of Sudan argued before the HRC that the lawful law Islamic be are sanctions under and must exempted even though they punishments its definition In UN Torture Convention excludes torture, the suffering. or of pain cause "pain or suffering arising only from, inherent in or incidental to, lawful sanctions". 164Nowak has argued that this "lawful
sanction clause" may not be applicable to Article 7 of the
157Seeal-Saleh,O.A., (1982) supra, note 153 above,p.72. isx ibid. "See e.g. Concluding Observationson Sudan(1997) UN Doc. CCPR/C/79/Add.85, Par. 9; Concluding Observationson Libya (1994) UN Doc. CCPR/C/79/Add.45, Par. 9; Concluding Observationson Islamic Republic of Iran (1993) UN Doc. CCPR/C/79/Add.25, Par. 11. 160SeeChapter 8 below. 161See Chapter 4, pp. 72-80 above on Islamic Criminal Punishments. X62General Comment 20, Par. 3. 163supra, note 147 above, Par. 31. 164See Art. 1(1) of CAT, supra.
127
it is to torture "lawful Even this and upon, only applies ICCPR. relied clause" sanction where 165 does not extend to cruel, inhuman or degrading punishments. One way adopted, for example, by the Islamic Republic of Pakistan to get around this difficulty is through strict adherence to procedural and evidential requirements for those Qur'anic offences. This often results in the application of to `zir (discretionary) punishments due to the difficulty
hudüd the to the enforce evidence valid required of satisfying
166The HRC has however observed that Article 7 must be read in conjunction punishments. is State Party to Covenant that 2 to the Article under an obligation the a effect of with '67 Covenant. Article 7 incompatible law the of with considered any specifically abrogate
FREEDOM
FROM SLAVERY,
SERVITUDE
AND FORCED LABOUR
Article 8 1.
No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
2. No one shall be held in servitude. 3.
(a) No one shall be required to perform forced or compulsory labour; (b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of sentence to such punishment by a competent court; (c) For the purpose of this paragraph the term `forced or compulsory labour' shall not include: (i) Any work or service, not referred to in subparagraph (b), normally required of a lawful in detention is of a order of a court, or of a person consequence person who under during conditional release from such detention; (ii)Any service of a military character and, in countries where conscientious by law is of conscientious objectors; required service any national recognized, objection (iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community; (iv) Any work or service which forms part of normal civil obligations.
Article 8 is aimed at protecting individuals from the most deplorable and degrading beings. The prohibition of slavery, slave trade and servitude is total fellow by exploitation irrespective is Article 4(1) the whether of or not under non-derogable and exception without 168 bondage. The to has qualifies prohibition of slavery as an or slavery consented victim 169The international forced law. or prohibition of compulsory of customary norm established 165See e.g. An-Na'im, A., "Towards a Cross-Cultural Approach to Defining International Standards of Human Rights: The (ed. ) in An-Na'im, A, Human Rights in Cross-Cultural Perspectives: Treatment" Degrading Inhuman "Cruel or Meaning of A Quest for Consensus (1992) pp. 29-32.
11 Seeexamination of Islamic Criminal Justiceof Pakistanin Chapter8 at pp.314-16 below.
167General Comment 20, Par. 14. See also p 102-103 above on legislative obligations of State Parties under the Covenant in Islamic law. States Muslim that limitation regard under of and the '" See Nowak, M, (1993) supra, note 5 above, pp. 143-ff; also Dinstein, Y., (1981) supra, note 82 above, pp. 126-128. 10 See e.g. American Law Institute, Restatement (Third) of Foreign Relations Law, Par. 702.
128
labour is however subject to five exceptions under the Covenant, viz, (i) the performance of hard labour in pursuance of a sentence imposed by a competent court, (ii) any other work or during from in detention lawful conditional release such or service required of a person detention, (iii) any service of a military character or national service required by law for in (iv) to cases of emergency or exacted any service military service, conscientious objectors (v) life the the any work and or service threatening of community, well-being or calamity 170 forms from Apart the traditional forms of slavery, part of normal civil obligation. which in for forms traffic labour, forced as women slavery such of modem other servitude and have debt bondage, of migrant workers and exploitation prostitution, exploitation of children, in 1984.171 in Slavery UN Report been published on condemned a also The question of slavery under Islamic law has been extensively examined earlier in 172 The fact that most modem Muslim Chapter 4 above.
States are State Parties to the
indicates trade the general consensus and slave international conventions prohibiting slavery Islamic the the the with principles Muslims of slavery of of prohibition compatibility on of law. This is further buttressed by Article 11(a) of the OIC Cairo Declaration which provides that: "Human beings are born free, and no one has the right to enslave, humiliate, oppress but God Most-High". be to the there them, no subjugation can and or exploit
THE RIGHT
TO LIBERTY
AND SECURITY
OF PERSON
Article 9 1
Everyone has the right to liberty and security of person. No one shall be subjected to deprived liberty detention. be his No shall of except on such one or arrest arbitrary by law. in such procedure as are established with accordance grounds and
2.
Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3.
Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4.
Anyone who is deprived of his liberty by arrest or detention shall be entitled to take in before decide delay that court, order court a may without on the proceedings lawfulness of his detention and order his release if the detention is not lawful.
'70 See Art. 8 (3)(b) and (c) of ICCPR. See also Nowak, M., (1993) supra, note 5 above, pp. 149-157. 171See Whitaker, B., Report on Slavery, U. N. Doc E/CN. 4/Sub. 2/1982/20/Rev. 1, UN Sales No. E. 84. XIV. 1, p. 10; See also Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949). for the Convention UN the 172See pp. 53-54 above. See also Qutb, M., supra, note 55 above, pp. 45-77.
129
5.
Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
The right to liberty and security of person is perhaps next only to the right to life. The State may however deprive a person of his liberty only in accordance with the due process of law. Article
9(1) is thus aimed on one hand at preventing the arbitrary and unlawful
deprivation of the liberty of individuals by the State, and on the other hand, providing for the its jurisdiction. State the to the persons within security of all ensure positive obligation of Articles 9(2) to 9(5) provides the necessary procedural guarantees to ensure that liberty is only
173 law. Although deprived according to
the deprivation of liberty
is more often
has imprisonment, Article 9(1) HRC the that stated offences and criminal associated with illness, "mental liberty deprivation to cases of the of of arbitrary prohibition extends 174 immigration ". it has Thus t. drug control, e. c. addiction, educational purposes, vagrancy, indicated that deprivation of liberty for these purposes must also be in accordance with law to is fully secured from violation except for human liberty inherent the the that person of ensure justifiable
and necessary reasons.
Also in Katombe Tshishimbi v. Zaire175 the HRC observed that the right to security formal deprivation liberty but be limited 9 to Article of situations of only not must under State's the to threats non-detained persons within to of a security personal extends 177 '76 in detention". "applies to persons and out of Thus the right to security jurisdiction. 178 fully is Islamic law. liberty it The right to personal also sanctioned under and security is the duty of the State to ensure it. The State cannot violate the personal liberty and security justification. without of anyone reported
in a Tradition
There is evidence for this from the practice of the Prophet as
by Abü Däwüd.
Some persons were arrested during
Prophet While the Medina in was giving suspicion. on time "0 asked: and stood up
Prophet
detained? " The Prophet
kept
of God!
quiet,
Why
expecting
a sermon in the mosque a man
have my neighbours the officer
the Prophet's
in-charge
detention who was present in the mosque, to give an explanation.
been arrested and of the arrests and
The complainant
asked the
in-charge, from time, there the third was no answer and when officer a and question a second detained be detention the their that Prophet persons released since and arrest ordered the illustrationof theproceduralguarantees 173For comprehensive underArticles9(2)-9(5)SeeJoseph,SchultzandCastan (2000)supra,note23 above,p. 291. 174SeeGeneralComment 8, Par. 1. 175CommunicationNo. 542/1993,UN Doc. CCPR/C/53/D/542/1993(1996).Par. 5.4.
'76 See also Delgado Pdez v. Colombia, Communication No. 195/1985 (12 July 1990), UN Doc. Supp. No. 40, Par. 5.5 (A/45/40) at 43 (1990).
177SeeJoseph,Schultz and Castan(2000) supra, note 23 above, p.207.
130
179This incident justified. be accommodates the modern constitutional law remedy could not is Article 9(4). There habeas between therefore guaranteed under corpus no conflict of Islamic law and the important procedural guarantees to ensure liberty and security of the individual
under Articles
9(2) to 9(5). Scholars representing all schools of Islamic
jurisprudence unanimously agreed during the Pakistan Constitutional debate of 1953 that the in habeas law Islamic Shari `ah fully that the was consonance with and corpus of right individual be highest the to to the the able move right of court for redress against recognises 180 detention. any unlawful Islamic jurists are thus agreed that a person cannot be deprived of his liberty without a 181 justification. Abu Yüsuf, the great eighth century Hanafi jurist, in his famous legally valid instructed Caliph had Harlin Kitäb the al-Rashid to order all governors in the al-Kharäj, work into investigate daily. They the to affairs of prisoners should punish those guilty of provinces forthwith immediately them those release and who are not charged with release and charge a 182 The OIC Cairo Declaration thus in inter Article 18(a) offence. provides, alia, specific any in for have live himself, his religion, his dependants, "Everyone to a security shall right that: his honour and his property" and in Article 20 that: "It is not permitted without legitimate individual, his freedom, to exile or to punish him". In the to an or restrict arrest reason human international rights standards this must certainly accommodate the right to context of be tried within reasonable time, right to bail, and right to compensation for illegal detentions Article 9 ICCPR. the of under as provided In its General Comment 28 the HRC observed that laws and practices which "deprive liberty basis, by their on an arbitrary or unequal such as of confinement within the women house" may violate Article 9.183 It is sometimes alleged that Islamic law requires the house. Many Muslim jurists the women within of scholars and refute this. confinement According to El-Bahnssawi: "A Muslim woman was not doomed to be a crippled member in the society, with the her husband his bidding him farewell at his task of welcoming at arrival and sole departure. Stories reported from the early days of Islam demonstrated that women, immunized by their deep faith and chastity, had performed similar work as men... The Muslim society did not object to woman's work in many fields. Needless to say, the Prophet did not deny woman's active participation in social life and, in some 178Seee.g. al-Saleh,O.A., (1982) supra, note 157 above,pp.55-90. 179SeeMaududi, A. A., Human Rights in Islam, (1993) p.26. Is' See Maududi, A. A., The Islamic Law and Constitution (1997) 338-40.
181Seee.g. Ibn Qayyim, J., A! -Turuq al-Hukmiyyahfi al-Siydsahal-Shar'iyyah (Arabic) (1961)p.103and Ibn Hazm, A. A., d.)Vol. 11, p. 141. (n. (Arabic) a!-Muhalld, '$2 A. A., (Trans. ) Kitab-ul-Kharaj (1979) 303. See e.g. All, 183General Comment 28, Par. 14.
p.
131
instances, beside man, as in military operations aimed at defending the religion of Islam". 184
The Qur'an had earlier prescribed confinement within the house as punishment for 185 If women were generally required to be confined within the house, its adultery. have been meaningless. would punishment as prescription
THE RIGHT
TO A HUMANE
INCARCERATION
SYSTEM
Article 10 1.
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
2.
(a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; (b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
3.
The penitentiary system shall comprise treatment of prisoners the essential aim of which be Juvenile be their offenders shall segregated and social rehabilitation. reformation shall from adults and be accorded treatment appropriate to their age and legal status.
Public interest and the right to security of others may sometimes demand that certain in accordance with law as indicated in Article 9 above. Article 10 incarcerated be persons incarcerated person is still "treated with humanity and with respect for that such any ensures 186 incarcerations ". The human dignity the inherent usual association of with of person. the criminal
imprisonment and offences
is here above portrayed also by the mentioned
"treatment of prisoners" in Articles 10(2) and 10(3). The "accused to persons" and references incarceration during is humane treatment the to that has right not restricted out pointed -IRC include (particularly "for hospitals hospitals), but example, psychiatric to also prisons only 187. institutions" Incarcerated persons shall not be tortured detention camps or correctional etc. be humane. living inhuman their treatment to conditions must also and or subjected The presumption of innocence until conviction is protected by the provision in Article 10(2)(a) for the segregation of accused persons from convicted persons. Due to the vulnerability
of juveniles Article
10(2)(b) also provides for their separation from adults
I&' El-Bahnassawi, S., (1985) supra, note 58 above, p. 64. 185Q4: 15. Iss Art. 10(1). 187See General Comment 9, Par. 1 and General Comment 21, Par. 2.
132
during incarceration. There is an obligation also on the State to ensure that the penitentiary for the reform and social rehabilitation of prisoners. essentially aims system Under Islamic
law, imprisonment
of offenders falls within
to `zir (discretionary)
be is known habs It as and could either a preventive confinement pending punishments. investigation (habs ihtiyäti), imprisonment upon conviction for an offence, or even have a 188The humane treatment deprivation liberty. of such of personal wider meaning of general incarcerated persons is generally covered by the rules of asir (i. e. captive in the custody of the State) under Islamic law. The humane treatment of captives and prisoners is found in "when had Ali in Qur'an. Yusuf that those times the observes captives of war mentioned food food,... (and) for them their prisoners... often starved unless was provided own to earn by private friends or from their own earnings", the Qur'an declared the feeding, for God's 189 in hereafter. The Prophet inter the as a means of gaining paradise alia, prisoners, of sake, is also reported to have ordered in respect of the prisoners of war taken by the Muslims at the Battle of Badr as follows: "Take heed of the admonition to treat prisoners fairly. s190 The Muslim jurists are agreed that since a prisoner is in the custody of the State, it is feeding, his The for and essential medical care other needs. clothing, prisoners responsible honour be his body, Married integrity the to mind and must respected. of person, right 19' ibn Ali Abi Tälib, fourth to the conjugal visitations. entitled periodic also prisoners are Caliph after the Prophet, was reported to make surprise visits to prisons to ensure the humane 192 hear inmates There to their the complaints. and are also numerous Traditions of treatment humane treatment and kindness to both the physically and the Prophet the ordering of incarceration. had in Abu Yüsuf his Kitäb or not under stated whether sick, almentally Kharäj that: "all the Caliphs used to bestow upon the prisoners what would sustain them as food in their their and other goods and clothing winter and summer. The regards first one to do this was Ali b. abi Talib in Iraq, then Mu'awiya did that in Syria then the rest of the Caliphs followed the practice after him. s193 188Seee.g. Awad, A. M., (1982) supra, note 129 above,p.91 at 102. '" Seegenerally Q76: 5-22 and Commentarynote 5839 to Q76:8 in Ali, A.Y., TheMeaning of the Holy Qur'dn (1992) p. 1572. 190SeeTabari, History I, pp.1337-8cited in Hamidullah, M., Muslim Conductof State(Revised7`hEd., 1977)p.214, Par.441.
19' The Saudi Arabian government is reported to apply this principle by allowing conjugal visitations to married prisoners of both sexes. See Al-Alfi, A. A., "Punishment in Islamic Criminal Law", in Bassiouni, M. C., (ed. ) The Islamic Criminal Justice (1982) p. 227 at 235-236. See also Document issued by Saudi Arabian Ministry of Foreign Affairs on Protection of Human Rights in Criminal Procedure and in the Organization of the Judicial System (2000). Section III: The Post-Trial Stage, Par. 7(a) and (b). Available Online at Saudi Embassy News Website: http: //www. saudienibassy. net/press release/hriudicial-l-menu. html [7/03/2001]. 192See Al-Alfi, A. A., ibid. pp. 235-236. 193See Ali, A. A., (Trans. ) Kitab-ul-Kharaj (1979) p. 301.
133
The OIC Cairo Declaration does not however contain any specific provision for a humane incarceration system.
FREEDOM
FROM IMPRISONMENT
FOR CONTRACTUAL
OBLIGATION
Article 11 No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.
Article 11 prohibits detention for liability arising from contractual obligations. There "the during drafting that the article should cover any contractual obligations, was agreement delivery debts, "194 This the the of performance of services or of goods. payment namely, indicates that such liabilities are not considered as constituting a crime. The freedom from imprisonment does not however extend to criminal offences related to the liability, such as funds. for fraud The of or embezzlement public provision also applies criminal conviction fulfil" debtor) does "inability (of to in the such obligation and not cover a of cases only 195 bankruptcy. fraudulent fulfil to and negligent contractual obligations or refusal
Islamic law does not also consider the inability to fulfil contractual obligations as Although Shari `ah imprisonment the or any other punishment. strongly advocates permitting (all) believe! "0 Fulfil fulfilment the who obligations"196, you obligations of all yet the in inability for have latter fulfil his the the to case of of respite obligee shall obligor is in debt The to the even encouraged off obligor write case of total obligation. contractual inability of the obligee. The Qur'an 2: 280 provides that: "If the debtor is in difficulty,
grant
him time till it is easy for him to repay, but if you remit it by way of charity, that is best for is have " knew. The Prophet "Whoever to if that: also reported stated only you gives you him God him from difficulties debtor the to will save or grants remission, a of the respite Resurrection Day. "197To indicate that the rule applies only in cases of inability of the debtor, debtor "Delay by further to settle his debt is an oppression that; Prophet a solvent stated the 198 The OIC Cairo Declaration does not provide specifically for this (against the creditor)". right.
"d UN Doc.A/2929, supra, p. 106Par. 46.
`95See Nowak, M., (1993) supra, note 5 above, p. 193ff. '96 Q5: 1. 'g' Reported by Muslim. See Karim, F., (1994) supra, note 197 above, Vol. 2, p. 206, Hadith No. 3. '" Reported by al-Bukhari and Muslim. See ibid, p. 207, Hadith No. 6.
134
THE RIGHT
TO FREEDOM
OF MOVEMENT
AND CHOICE
OF RESIDENCE
Article 12 1.
Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2.
Everyone shall be free to leave any country, including his own.
3.
The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4.
No one shall be arbitrarily deprived of the right to enter his own country.
Freedom of movement is an important human right and a cardinal element of right to human is for Article It liberty. the thus vital enjoyment of other rights. personal
12
internal freedom for both those choice of of movement and residence and external guarantees "lawfully
has State". The HRC therefore observed that the provision the territory of a within
"does not recognize the right of aliens to enter or reside in the territory of a State,party. It is 199 it its for State decide The right is territory". to the to in principle a matter who will admit by law limitations to to provided necessary protect national security, public subjected also 200 freedoms health, Covenant. of others consistent with the morals, rights and order, public Article
12(4) prohibits the arbitrary deprivation of the right to enter one's own country.
Although the right to enter one's own country is not subjected to the limitations in Article 12(3), there seem nevertheless to be some implied limitations in the wordings of Article 12(4) itself. Article 12(4) prohibits only "arbitrary"
deprivation of the right to enter one's
has based Nowak limitation the that this travaux pointed on out preparatoires own country. interpreted "to lawful for to be relate cases of exclusively exile as punishment strictly a must 201 Jagerskoild has however argued that perhaps exile as punishment for a crime "is crime". it international law, be s202 jus This and may even under customary cogens. prohibited now finds support in the HRC's
Concluding Observation on the Dominican Republic that 203 is by Covenant". Also in Charles Stewart v. "punishment not compatible with the exile Canada the Committee observed that the obligation of a State under Article 12(4) to allow
199General Comment 15, Par. 5. Seealso Charles Stewart v. Canada,CommunicationNo. 538/1993, Human Rights . Committee, UN Doc. CCPR/C/58/D/538/1996,(16 December1996)Par-12.5and 12.6; and Canepav. Canada, Communication No. 558/1993,Human Rights Committee,UN Doc. CCPR/C/59/D/558/1993(20 June 1997)Par 11.3.
200Art. 12(3). See also Jagerskoild, S., "Freedom of Movement", in Henkin, (1981) supra, note 6 above, p. 166 at 174, and Nowak, M., (1993) supra, note 5 above, pp. 206ff. 201See Nowak, ibid. p. 219.
2' SeeJagerskoild,S., (1981) supra, note 200aboveat 181.
203Concluding Observations on Domincan Republic, (1993) UN. Doc. CCPR/C/790/Add. 18, Par. 6. See also Concluding Observations on Islamic Republic of Iran (1993) UN Doc. CCPR/C/79/Add. 25, Par. 14.
135
from his from deporting into his a person own also prohibited country own person a of entry 204
country.
in law basis is Islamic the Freedom of movement and choice of settlement recognised on for has is (God) Who "It He tractable the that: Qur'anic earth you made provision of the (God) He its the tracts through traverse sustenance which of (mankind), so and enjoy furnishes; but unto Him is the Resurrection. s205The Qur'an even indicates that people who be in died the from with question confronted to would sin and persecution emigrate refused for God to "Was the Day you emigrate that: enough spacious Judgement of earth not on human beings Qur'an to that the There "206 charge of verses numerous also are therein? 207 God. benevolence the to of the and majesty appreciate earth traverse This right to freedom of movement and choice of settlement is reported to have been in face difficult ibn Abi Tälib, Ali the fourth Caliph, the by the of even demonstrated political
crisis with Mu'äwiyyah
during his reign.
Ali was advised then to prevent the
join Syria Mu'äwiyyah from Medina to to who crossing who were people some of movement Caliph. Caliph Ali Empire Islamic the leadership the the with of was then contending had God-given that the the a right of people declined to prevent movement on grounds justification. is He Caliph land, the the without not revoke could which movement over live (Khawärij) Dissenters they they that have the may wherever to even assured reported in bloodshed indulge did long Islamic they the and acts of not as empire as within wished 208 Article 12 of the OIC Cairo Declaration thus provides that: oppression. "Every man shall have the right, within the framework of Shari 'ah, to free movement " his inside his country... to or outside place of residence whether select and
However, with regards to the right of women to freedom of movement under Article 12, States in Muslim that has to the a male relative must HRC some requirements alluded the 209This is based Tradition Prophet journey. the the of on requirement accompany women on a Muhammad that "No woman shall make journey covering the distance of a day and night s210 Tradition (Mahram). In by a man a similar was male relative a accompanied except in he had Prophet take the that to have then enrolled part an saying to asked reported 264supra note 199 above,Par. 12.2. 205Q67: 15. 711 Q4:97. Seee.g. Q6: 11; 27:69; 29:20; 30:42.
208See, Tabandeh, S., A Muslim Commentary on the Universal Declaration of Human Rights (1970) p.33. and Chaudhry, M. S., (1995)supra, note 82 above, p.21.
209Seee.g. HRC SummaryRecord of the 1628thMeeting: Sudan,UN Doc. CCPR/C/SR.1628of 02/02/98, Par. 49. Seealso GeneralComment 28, Par. 16.
136
intended but his for Pilgrimage. The Prophet instructed the man to travel wife also expedition 21 1 follow his his for her The latter explains that to abandon expedition and wife pilgrimage. being than a restriction on the right of women to freedom of movement, the rather requirement was a security right to which women were entitled to ensure their safety on long journeys in those times. Kamali has observed in that regard as follows: "... Another example of ongoing reinterpretation is the scholarly contribution of the Egyptian scholar Yusuf al-Qaradawi, who validated air travel by women unaccompanied by male relatives. According to the rules of fiqh that were formulated in premodern times, women were not permitted to travel alone. Al-Qaradawi based his conclusion on the analysis that the initial ruling was intended to ensure women's physical and moral safety, and that modem air travel fulfills this requirement. He further supported this view with an analysis of the relevant hadiths on the subject and arrived at a ruling better suited to contemporary conditions. "212
FREEDOM
OF ALIENS
FROM ARBITRARY
EXPULSION
Article 13 An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before the competent authority or a person or persons especially designated by the competent authority.
As is clear from the above provision, the guarantee here is not absolute, it only protects legal aliens from arbitrary expulsion and also sets out some procedural guarantees that must 213 be fulfilled in
caseof expulsion.
The above provision is in full consonance with Islamic law. Hamidullah quotes alShaybäni on the rights of aliens to enjoy protection and justice within the Islamic State as follows: "It is a principle (of Muslim law) that the sovereign of the Muslims has the obligation to protect foreigners coming with permission as long as they are in our (Muslims) territory, and to do justice to them - this in the same way as he has an obligation 214 " regarding non-Muslim subjects.
2'0 ReportedBy al-Bukhari and Muslim, Seee.g. Karim, F., (1994) supra, note 197 above,Vol. 3, 572, Hadith No. 11. p. Z" ReportedBy al-Bukhari and Muslim, Seee.g. Karim, F., (1994) supra, note 197 above,Vol. 3, 571, Hadith No. 9. p.
212See Kamali, M. H., "Law and Society: the Interplay of Revelation and Reason in the Shariah" in Esposito, J. L., (ed. ) The Oxford History of Islam (1999) p. 107 at 118.
213SeeGeneralComment 15, Par. 9 and 10.Seealso Joseph,Schultz and Castan(2000) supra, note 23 above,pp.268-276. 214Hamidullah, M., (Revised7`hEd., 1977)supra, note 190 above, p. 133, Par. 249.
137
While Article 12 of the OIC Cairo Declaration recognised the right of residence outside
for it however failed be to the to right specifically provide of aliens not country one's own arbitrarily expelled.
THE RIGHT
TO FAIR HEARING
AND DUE PROCESS OF LAW
Article 14 The right to fair hearing and due process of law is aimed at guaranteeing equity and fair individual justice. It in the the especially against the abuse of protects of administration play importance its Article is by State The 14, the the agents. real of or which the criminal process longest of the substantive provisions of the ICCPR, lies in the fact that the realisation of all human rights often depend on the proper administration
justice through equitable of
procedural guarantees. The procedural guarantees under Article 14(1) apply not only in criminal trials but also in matters concerning the determination of "rights and obligations in a suit at law". The HRC has observed that "(l)aws and practices dealing with these matters vary widely from State to State. "215 Nowak has pointed out that the provisions in Article
14 are based on Anglo-
American (and Civil Law) "liberal principles of separation of powers and the independence 216 it is however, If by HRC the the judiciary perceived as stated executive". vis-ä-vis the of (in Article 14) "(a)ll these are aimed at ensuring the proper administration provisions of that imposing Civil Anglo-American Law it be the then justices217 or systems, not at and will of in relation to other systems such as the Article 14 interpret the to under guarantees easier 218 Islamic legal system. Under Islamic law the issue of fair trial and due process, being procedural, is covered by 219 Shari `ah law. by The Islamic the than per se mainly covers sources of the methods rather law fall Islamic the aspects while procedural within the realms of aspects of the substantive figh
jurists. Qur'an Sunnah by While formulated the the and may specify the crime, as
justice, do details they not enjoin substantive and give of procedural prescribe punishments, investigation, detention, hearing, judicial t. prosecution, arrest, as review, e. such c. matters
215SeeGeneralComment 13, Par. 2. 216See Nowak, M., (1993) supra, note 5 above, p. 237. 217See General Comment 13, Par. 1. 215It is important to note that Islamic law is based on a complete legal system having rules, procedures, courts and from the clergy. See e.g. Azad, G. M., Judicial System of Islam (1987) and note 220 judicial apart personnel specialised below. 219See Chapter 3 above on the nature of Islamic law.
138
The Shari `ah mainly emphasises substantive justice leaving the procedure of its realisation 22° interests best in decide for the State to of society. accordance with the Drawing from the Prophet's practice and that of the rightly guided Caliphs, the early Muslim jurists endeavoured to lay down judicial
procedures which they believed would
facilitate the realisation of substantive justice as prescribed by the Shari `ah. The judicial jurists but in in found the the not rigid were were adjusted works of classical procedures as during Abassid Caliphate. doctrine yyah, the the especially of siyäsah shay practice under Muslim scholars fully agree that the particularities of the Islamic judicial system are not inflexible,
but leave room for necessary refinement as the needs of substantive justice
221 Thus although the judicial procedures found in the works of classical Islamic demand . jurists may not expressis verbis contain the list of guarantees provided in Article 14 of the ICCPR, it is not difficult to establish those guarantees within the Shari `ah and the principles jurists. had justice by Tabandeh laid down the that Islamic pointed of out administration of law fair due Universal Declaration the to trial of process under and the relating six articles all long dealt with all the points law, has fully "conform Islamic Rights222 to Human which of 223 its perfect social regulations". they raise under Due to the complexity of the provisions of Article 14 we shall examine the paragraphs the they the the within rights guarantee principles of and analyse procedural other one after Islamic law.
14(1)
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone by hearing be fair to a competent, independent and entitled a and public shall impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
120For classical analysis of the development of the Islamic judicial procedure, See e.g. Ibn Khaldün, al-Mugaddimah, Vol 2. M., al-Turuq al-Hukmiyyahfi al-Siydsah al-Shar'iyyah (Arabic) (1953) p. 218ff and alQayyim Ibn 35-37; al-Jawziyyah, p. Mawardi, supra , note 270 above, pp. 69-73. See also contemporary analysis on the subject by Awad, A. M. (1982) supra, Al-Alwani, T. J., "Judiciary and Rights of the Accused in Islamic Criminal Law", in Mahmood, T., et at, 91-92; 129 p. note (eds. ) Criminal Law in Islam and the Muslim World (1996) p.256-263; Mahmood, T., "Criminal Procedure at the Shari'ah Law as Seen by Modern Scholars: A Review", in Mahmood, T., et al, ibid., pp. 292ff; and generally Lippman, M., et al, (eds. ) Islamic Criminal Law and Procedure: An Introduction (1988).
22' ibid.
IIZ i. e. Articles 6,7,8,9,10, and 11. 223See Tabandeh, S., A (1970) supra, note 208 above, p. 28.
139
The important rights guaranteed here are (i) equality of parties before the courts in both (ii) fair hearing by legally proceedings and and public civil competent tribunals. and criminal The HRC observed in Bahamonde. v. Equatorial Guinea that "the notion of equality before the courts and tribunals encompasses the very access to the courts and that a situation in jurisdictions individual's his/her to the attempts seize competent of grievances are an which 224 frustrated 14, 1". The paragraph runs counter to the guarantees of article systematically Committee has also observed that States parties must ensure that courts "are independent, impartial
and competent, in particular with regard to the manner in which judges are
for duration the the qualifications appointment, and of their terms of office; the appointed, 225 functions". These transfer their promotion, and cessation of governing conditions in full Shari `ah. The Qur'anic the the consonance with provisions of are guarantees injunctions on justice are always laden with the idea of equality and fairness. For example: "0 you who believe! Be maintainers of justice, bearers of witness for God's sake, it be though againstyour own selves,your parents, or your near relatives, and even be (the) (the) "ZZ6 it against rich or poor... whether "0 you who believe! Be upright for God, bearers of witness with justice; and let not the hatred of a people swerve you to act inequitably. Act equitably, for that is nearer to piety... "227 ".... And when you judge between people judge with equity; certainly God counsels you excellently, and God hears and sees (all things)"228 indecencies and "God commands (the doing of) justice and fairness and prohibits ... injustice... s229
Doing justice is considered under Islamic law as a duty to God from which emanates the fairness for human beings to to and all without regard status, race, gender or equality rights Qur'an The says: religion. "0 Mankind! Be mindful of your duty to your Lord who created you all from a single soul and from it created its mate and from the two of them spread out a multitude of men and women. Be careful of your duty toward God, through Whom you claim God is ever-watchful over you all. 11230 (your rights from one another) and ...
224CommunicationNo. 468/1991, UN Doc. CCPR/C/49/D/468/1991(1993). Par. 9.4. 221GeneralComment 13, Par. 3. 226Q4: 135227Q5: 8. 218Q4: 58. 1 Q16: 90. 2° Qur'an 4: 1.
140
The expression "0 Mankind! " with which the above verse begins is an important indicator of non-regard to status, race, gender or religion in the claiming of rights and the doing of justice with which the verse ends. The notion that "the Crown or the King can do no in legal Islamic has theory. The Prophet himself and the righteous existed never wrong" Caliphs after him demonstrated the principle of equality before the courts and tribunals both in words and deeds. An illustrative example of this was in a case brought by a commoner ibn Caliph ibn Ka'b Umar during Ubay the latter's rule as second against al-Khatäb called Caliph of the Islamic empire. The case was before Zayd ibn Thäbit. When Caliph Umar defend brought him by to the the commoner, Zayd (the the against courtroom suit entered judge) stood up as a sign of respect for Caliph Umar.
For doing that, the Caliph rebuked
Zayd saying: "that is your first injustice to the other party in this case". After the hearing, Ubay could not adduce enough evidence to establish his claim against the Caliph, but in Islamic law, the that the with prescribed accordance rules of evidence under requested, Caliph must make an oath to sustain his denial of the claim. Zayd, again out of respect for the Caliph, requested Ubay to spare Umar from that formality since it was clear that the Caliph frowned Caliph Umar favouritism be lying. this at and said to Zayd, "If an ordinary could not before fit be judge Umar s231 then to equal you, are not you are a not and al-Mäwardi man . instance in Caliph Umar judges during to the sent a which message one of another cited also his reign ordering him as follows: "Make people equal before you in your dispensation of justice, so that no noble may look forward to your favouritism and no commoner may despair 232There is thus Muslim jurists justice". it is that a consensus among obligatory on a of your 233 before him in the In General judge to maintain equality among parties every case. Comment 28 the HRC raised the point of women giving evidence as witnesses "on the same Article brings 14. This the evidential capacity of women under Islamic terms as men" under law into issue as a matter concerning the equal right to fair hearing. The rules of evidence in Islamic law requires in some cases the evidence of two men or (i. two man women one and e. two women replacing one man). This is based alternatively, 282 inter 2: that: Qur'an which provides, alia, on "0 you who believe! When you contract a debt for a fixed period, write it down.... And get two witnesses out of your own men, and if there are not two men (available)
231See e.g. Hussain, S.S., "Human Rights in Islam: Principles and Precedents" (1983) 1 Islamic and Contemporary Law Quarterly, p. 103 at 121-126 and Maudüdi, A. A., (1993) supra, note 179 above, pp. 21-22 & 31-32 for further illustrations. 232al-Mawardi, supra, note 270 above, p. 76. 233See e.g. Ibn Rushd al-Qurtubi, A., (1988) supra, note 116 above, Vol. 2, p. 472, The Chapter on How to dispense justice.
141
then a man and two women, such as you agree for witnesses, so that if one of them (two women) errs, the other can remind her... "234
It will be observed that the above verse substitutes the evidence of one man with that of two women and thus raises the question of inequality and discrimination on grounds of sex human law. Although has international been imposed this traditionally rights provision under Islamic law, Muslim have testamentary evidences under scholars all upon argued generally that it does not apply in all cases but is restricted only to testimony in business transactions, being have discriminatory, They debts that than the contracts. contended rather and civil because being is then seldom assumed by transactions precautionary, such mainly provision in intricacies involved lacked likely the they to experience and were ordinarily more women, issues in Therefore for in that the the of respect. reason requesting two presentation err in here "if in that them the presentation of the one errs" of one man was of place women 235 her". One observes that in all other provisions concerning the issues "the other can remind financial in business Qur'an does transactions, the than or evidence other of not procurement discern between the male and the female. For evidence in divorce cases the Qur'anic is that: provision "... When you divorce women take them back on equitable terms or part either ... for from terms; take two them witnesses on equitable and persons among you with ""' (emphasis justice... added). with endued
For evidence in bequest matters the Qur'anic provision is: "Oh you who believe! When death approaches any of you, (take) witnesses among yourselves when making bequests - two just persons of your own ... 23 (emphasis added).
And in evidence for adultery the Qur`anic provision is that: "And those of your women who commit illegal sexual intercourse,take the evidence 238 from (emphasis four them... amongst against witnesses you added). of In all these other cases a generic term "two just persons" (dha wd adlin) or "witnesses" (shuhadä ) is used without any differentiation of gender as was adopted in the first case. It be therefore argued that the transposing of the provision can
concerning commercial
234Q2: 282 touches basically on financial transactions and obligations. us See e.g. El-Bahnassawi, S., (1985) supra, note 58 above, p130-131. 2" Q 65: 1-2.
237Q 5: 106.
142
transactions upon all other types of testamentary evidence arose from the traditional position direct in from Qur'anic In is text. the there not a society, same women way consensus of is jurists female in lack that the evidence alone admissible cases where men adequate among knowledge or where it is impossible for men to have knowledge except women. 239 ElBahnassawi thus concluded that: "It should be borne in mind that Islam attributed this differentiation between the sexes to their respective natural dispositions, though it had acknowledged their from is indicative It the same origin and essence. not of woman's inferiority creation but touches directly on people's interests and the safeguarding of Justice. Should the law treat the testimony of a woman- as she is (was?) inexperienced in business and commercial fields - equal to that of a man, it would be detrimental to the cause of justice and the interests of the contracting parties. Woman, it is clear, shall not draw any gain or advantage therefrom. """
While generally conceding to the principle of equality Islamic law also takes specific 241 in into The desire is that that may arise certain contexts consideration. greatest needs social justice. for in The doing two prescription women place of one man thus occurs substantive of in have in business transactions to the same experience as men. women used not which only This would then raise the question that, since women now partake in business transactions have women acquired professional experience commensurate to that of men in many and in be the two place rule of women witnesses of one man can suspended where no commerce, incurred? desire justice be The do justice to argument of of will substantive can miscarriage interpretation liberal Shari `ah leave Muslim that the to adopt of countries a out this rule sway justice in interest demonstrated in Northern Nigerian the the of as or necessity of on grounds in Chapter Dorawa 5.242 The Pakistan Federal Shariat Rijiyan Court had earlier cited of case Ansar Burney Federation Pakistan243 instances in to the of v. of case referred possible also . States female hard-line that traditional approach may however witness. maintain a single of a in by breach be Article interpreted 14(1) be the by same argument and will of swayed as not the HRC. With respect to public trials and legally competent tribunals, the first is evident under Islamic law from the fact that traditionally mosques were mostly used as the courtrooms.
738Q 4: 15. The rule applies vice versa for men who commit adultery. 239See e.g. Al-Jazä'iri, A. J. Minhäj al-Muslim (Arabic) (1976) 8`hEdition, p. 467; and Al-Zuhayli, W., supra, note 77 above, Vol. 8., pp. 6045-6046. See also Qadri, A. A., (1986) supra, note 259 above, p. 505 and El-Bahnassawi, S., (1985) supra, 132. 58 p. above, note 24° Bahanssawi, S., (1985) ibid. 241See Hallaq, W. B., A History of Islamic Legal Theories (I 997)p. 184. 242See pp. 92-93 above. 243supra, note 78 above.
143
This was the most obvious public place within the Islamic Empire. Islamic law also provides judges, for the appointment of and only competent and duly appointed qualifications specific 244 judgements. binding judges can give Thus, the guarantees in Article 14(1) are generally compatible with Islamic law. This is by Article substantiated
19 of the OIC Cairo Declaration which provides that: "(a) All
individuals are equal before the law, without distinction between ruler and ruled; (b) The
justice is to to guaranteedto everyone". right resort 14(2)
Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
Islamic law fully recognises this right. The presumption of the defendant's innocence is depicted in Islamic law. important Basically, various rules of principle evidence under an 245 is inherently immaculate. being be human by Thus, to the Islamic legal considered every (presumption is istishäb, of continuity)246 accused an person of considered innocent principle is Generally, Qur'an Muslims the to ascertain the truth of the proved. contrary enjoins until 247 innocent is harming This to avoid wrongfully persons. allegation more specifically every demonstrated through the general rule of Islamic evidence, which provides that the onus of instance, Claimant Complainant. Qur'an For lies the the or on provides that: "And proof those who launch a charge against chaste women and produce not four witnesses (to support their allegation) flog them with eighty stripes and reject their evidence ever after, for such 248 Also Prophet had "The transgressors". the that: wicked stated onus of proof lies are men is denies Claimant, "249 A the the an and oath required of one who claim. possible upon Western legal from be that the requirement of an oath to a perspective would argument denial impugns defendant's Islamic law the the total presumption of the under sustain defendant's innocence. This requirement of an oath to sustain the defendant's denial under Islamic law derives from the need to do substantive justice especially in civil claims, because it is possible that a Claimant may sometimes fail to prove his case only for lack of eloquence in Thus, defendant's is technicalities. the such cases on oath only to ensure positive or simply
2" ibid., p.460. Seealso Ibn Khaldün, Al-Muqaddimah, Vol. 2 p. 746.
245This is based on a Prophetic Tradition that: "Everyone is born inherently pure... 246Istishdb is a principle of Islamic law which denotes the continuation of an established state of affairs until the contrary is its Karnali, M. H., Principles of Islamic Jurisprudence (1991) pp. 297-309. For of application e. g. see an analysis proven. 247Q49: 6.
248Q24:4. Note that this onus of proof lies upon the accuserof both men and women of adultery.
209Reported By al-Bayhägl. See e.g. al-Asgalani, Ibn Hajar, Bulugh al-Maram (With English Translations) (1996) p. 499, Hadith 1210.
144
justice250 The presumption of the defendant's innocence under Islamic law is further demonstrated by the unanimity of the Islamic jurists that any balance of probabilities or doubt in criminal trials must be resolved in favour of the accused. This is based on the Prophet's instruction that the hudüd punishments should be averted with the slightest iota of doubt 251Article 19(e) of the OIC Cairo Declaration thus provides that: "A defendant is . innocent until his guilt is proven in a fair trial in which he shall be given all the guarantees of defence. "
14(3)
(a)
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality; To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
Prompt information of the accused person of the nature and cause of the charges against him aims, inter alia, at preventing arbitrary charges and also leaves the accused in no doubt in its General him. has Comment The HRC 13 that the the stated against right of charges of informed `promptly' "to be the charge of an accused person
requires that information is
is first described by in the the as charge made as soon manner a competent given freedom liberty be s252 Because the an of accused person and may restricted to authority. facilitate
investigation, a prompt information
in the language that the accused person
the to wrong committed certainty of warrant any such restriction and will ensure understands imposed if found be thereafter that may guilty of the alleged wrong. sanction the subsequent This is in full consonance with Islamic law since the Qur'an provides that blame can only be 253 have certainly committed wrong. against those who (b)
To have adequate time and facilities for the preparation of his defence and to his of own choosing; with counsel communicate
The guarantee in Article 14(3)(b) is related to the accused person's general right to defence, which is examined in detail under paragraph (d) below.
(c)
To be tried without undue delay;
2`0 This may also be compared with the Oath or Affirmation undertaken by litigants to speak "the truth and nothing but the legal Western of evidence under systems. the commencement truth" at 251See Al-Zuhayli, W., (1997) supra, note 77 above, Vol. 4., p. 3144; and al-'Awwa, M. S., "The Basis of Islamic Penal Legislation" in Bassiouni, M. C., (ed. ) The Islamic Criminal Justice (1982) p. 127 at pp. 143-144. 252General Comment 13, Par. S. 253See e.g. Q42: 42.
145
The guarantee to be tried without undue delay is consequential to the right to justice, because justice delayed is justice denied. Due to the great emphasis that Islam places on justice, any undue delay in the administration of justice is also prohibited. The Islamic jurists be delayed. Some for the must not of that criminal offences presentation of evidence stress in delayed trial to jurists that the Islamic criminal amounts evidence opinion of are the 254 for hudüd Islamic law. crimes under doubtful evidence which cannot sustain punishment (d)
To be tried in his presence, and to defend himself in person or through legal have legal if he does be informed, his to assistance, not own choosing; assistance of him, in legal have to to any case where the this assigned assistance right; and of interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
The accused person's right of appearance and defence are both very much recognised its in defence that Qur'an law. The the Islamic narration even when of right establishes under Adam violated God's order in the Garden of Eden, he was given the opportunity of defence, 255Also the Qur'an presents us with scenarios of the fact had he non. apparently even though if defences, God to their hereafter in the present an opportunity will give sinners that even 256 him in Caliphs The Prophet the being before after also set examples and punished. any, ibn Abi Tälib Governor Ali instance Prophet For to the as appointed when that respect. him first hearing brought decide the to him instructed to he without matter any Yemen not 257 Caliph Umar ibn Abdul Aziz was also reported to have handed defence of the other party. "If litigant follows: during his judges instructions to comes complaining with a as rule down it in favour for is his decide be do the to other appears, until party blinded quick not eye, a has blinded the latter in both eyes.s258 former the that possible Qadri has pointed out that Islamic law "does not favour the trial of a claim in the is forced by if defendant" to the that the the proceed ex Parte nonand court of absence be defendant's defendant, to the the appointed protect must a representative availability of 259 The right to defence has been so much emphasised under Islamic law to the extent interest. its The be to right to adequate time and adequacy. made ensure must that every effort facilities to prepare one's defence under Article
14(3)(b) is very much incidental to the
is defence by thus to the this and also protected general right rules of enjoyment substantive u° SeeSalama,M. M., "General Principles of Criminal Evidence in Islamic Jurisprudence",in Bassiouni, M. C., (ed.) The 113-115. (1982) Justice Criminal p. Islamic 'ss SeeQ 7: 22-24. 256See e.g. Q7: 22-35; 67: 6-11.
u7 SeeIbn Rushd al-Qurtubi, M., (1988)supra, note 116 above,at 472.
"s See Awad, A. M., (1982) supra, note 129 above p. 97; and Al-alwani, T. J., (1996) supra, note 220 above, p. 274. 259Qadri, A. A., (1986) supra, note 22 above, p. 495.
146
260 is The It the to to right counsel of one's same applies choice. often above. stated is by disallowed that counsel representation under Islamic law. portrayed erroneously Although the early Islamic jurists concentrated largely on the litigant presenting his case litigant the to appoint another person to represent they of a recognised right also personally, him. It is reported for instance that the fourth Caliph, Ali ibn Abi Tälib disliked litigation, so in any case in which he was a party he usually appointed Ukail ibn Abi Tälib to represent him. 261Also in his work titled The History of the Judges of Cordova, al-Khushäni stated the instance of two men who brought a matter before the judge Ahmad ibn Bägi. In presenting their cases, the judge observed that one of the men was very eloquent while the other had judge latter his The "Would it thus the case eloquently. advised saying: problems presenting if by better be were someone who can match the verbal skills of your you represented not judge "But in insisting " I The The the truth". answered saying: only speak man opponent? have "How he said: an attorney many men perished telling the truth! (for lack that engaged 262 Although representation by counsel is not generally in the practised of eloquence)". Islamic judicial system of some Muslim countries, there is nothing in Islamic law that interest litigants to the the of and to ensure substantive use of counsel protect prevents justice. Due to the fact that most individuals are generally ignorant of the law and oblivious Shari `ah, the to to the their right engage counsel and communicate with under rights of has become imperative Islamic law. today own choice actually more under one's of counsel The guarantee of the right to counsel will no doubt ensure equality of arms at law especially in criminal trials between individuals and State Prosecutors who on their part are often not is law the the accused person. as of oblivious Islamic jurists are so particular about the right to defence to the extent that the Hanafi hudüd inflicted be dumb because holds the that punishment upon a cannot person school he have been he defence if to that capable of speaking were may able raise some perhaps doubt hudüd thus the the Many and negate application of punishment. some create may law Islamic thus on argue strongly that the right to engage counsel writers contemporary "theory interest" individual falls Islamic law the the of within protected of under and actually 263 State. by Provision free legal by fully in the State, be the ensured of aid accordance must
260See e.g. Al-Alwani,
T. J., (1996) supra, note 220 above, pp. 273-276.
21' Seeal-Bayhägl, A., Kitäb al-Sunan al-Kubrä (Arabic) (1925) 26 cited in al-Saleh,0. A., (1982), supra, note 157 above, 81. 62See Al-Khushani, Tärikh Qudät Qurtubah (Arabic) cited in Awad, A. M., (1982) supra, note 129 above p. 99. 23 See e.g. Al-Alwani, T. J., (1996) supra, note 220 above, pp. 274-276; al-Saleh, 0. A., (1982), supra, note 157 above, pp. 81-84; Awad, A. M., (1982) supra, note 129 above p. 95; Mahmood, T., "Criminal Procedure at the Shari'ah Law as Seen by Modem Scholars: A Review", (1996) supra, note 220 above, p. 300.
147
for be to those Covenant to pay such services will who cannot afford very obligations, with law. be Islamic in to thus that contrary and will not regard much advantageous
(e)
To examine, or have examined, the witnesses against him and to obtain the his behalf on under the same conditions as of witnesses examination and attendance witnesses against him;
(f)
To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
Both the right to examine witnesses and the right to an interpreter are natural and denial defence Their to the earlier addressed above. will substantive right essential aspects of
fully law. Islamic injustice. Both therefore lead doubt to recognised under are guarantees no On the issue of language the Qur'an states that God does not send a messenger "except in the 264 indicates This in to them". the divine things to clear language of his people, make order recognition
in be beings language human to the they the communicated of right of
understand.
(g)
Not to be compelledto testify againsthimself or to confessguilt.
Under Islamic law an accused person may be convicted
through his voluntary
being compelled to confess guilt or incriminate is he but protected against confession himself. The Shari 'ah provides that a person will not be punished for things done involuntarily or under compulsion. Even for the sin of apostasy, compulsion exonerates from God's punishment in the hereafter. The Qur'an provides that: "Anyone who after accepting faith in God, disbelieves, except under compulsion, ... be (emphasis from God is theirs them and will a severe punishmenti265 anger on added)
Prophet Muhammad had also stated that his community is exempted from responsibility 266 forgetfulness duress. The same rule for things committed through mistakes, and under jurists have Islamic the to a means of evidence. as considered probability confession applies its false being In than the forced greater as veracity. prohibiting extraction of confession a of ibn al-Khatäb is reported to have stated that "A person Umar through coercion, evidence 264Q14: 4.
265Q16: 106 (emphasisadded).
Reported By Ibn Majäh. See e.g. Ibrahim, E., and Johnson-Davies, D., (Trans. ) Forty Hadith, An-Nawawi's pp. 120-121, Hadith 39.
'
(1985)
148
be from incriminating himself if not secure you made him hungry, frightened him or would Also a man accused of theft was beaten until he confessed and was brought confined him. 99267 ibn Umar for punishment, but ibn Umar did not punish him because he 268 law Islamic thus specifies strict rules for confession and the coercion. under confessed
to Abdullah
jurists Islamic the thus hold that any admission of guilt or confession obtained by majority of 269 interdiction inadmissible The accused person has a right amounts to evidence. coercion or to remain silent and not to respond to questions put to him. Also the accused person has the his in hudüd to confessions retract offences even up to the last minute of executing the right punishment. Where the accused person is however known to be a notorious criminal and there are he has hidden to the that the stolen property, some circumstances effect contributing other he hold An has been that to maybe coerced confess. example given of a known thief scholars denied he had hidden the stolen to some goods stealing and was coerced confess where who jurist, ibn Islam Yusuf, The who witnessed the coercion exclaimed saying: "never goods. have I seen injustice appear so similar to justice than in this case". That the coercion was described by Ibn Yusuf in this instance as an injustice suffices to indicate its abhorrence. The jurists have therefore contended that conviction in such a situation would not be based on the 270 but on the recovery of the stolen goods. confession
14(4)
In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
Rather than stigmatising young offenders with criminality
and focusing on their
punishment, this provision promotes their rehabilitation and re-integration "back onto the s271 is This by the Islamic teachings acceptable conduct. very socially well supported of path on the proper upbringing and training
of children who are considered as the future
fact immature In Prophet the exonerated persons completely from responsibility generation. by stating that "Three (categories of) people are free from responsibility, the insane until he is sane, the sleeping until he wakes and the child until it reaches maturity. ,272
"' See al-Saleh, O. A., (1982) supra, note 157 above, p. 73. 263ibid.
Seee.g. Salama,M. M., (1982) supra, pp. 119-120.
270See al-Wani, T. S., (1996) supra, at 276ff. See also al-Mawardi, A., al-Ahkdm as-Sultäniyyah, Trans. Yate, A., (1996) p. 310. 271See Noor Muhammad N. A., "Due Process of Law for Person Accused of a Crime", in Henkin, L., (1981), supra, note 6 above, p. 155.
149
14(5)
Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
The right to an appeal to a higher court is recognised under Islamic law. Abu Yüsuf was justice. in Islamic He (Chief Justice) the Qädi first of was administration the al-Qudät in in Baghdad Caliph, Härün Abassid the during the eighth the al-Rashid of rule appointed judges decisions throughout the hear the other of review and appeals century and could 273 Islamic jurisprudence thus provides for the principles of appeal and Empire. Islamic in `ah legal is Islamic This judgements. the which exists principle of muräfa under revision of 274 States. the Islamic legal system of many Muslim
14(6)
When a person has by a final decision been convicted of a criminal offence and he has been been has his pardoned on the or reversed conviction when subsequently has been fact discovered that there that shows conclusively a a new or newly ground has justice, the suffered punishment as a result of such who person of miscarriage conviction shall be compensated according to law, unless it is proved that the nondisclosure of the unknown fact in time is wholly or partly attributable to him.
injury to law the who of a person suffers or Islamic compensation right also recognises is punished through judicial error or miscarriage of justice. The jurists rely on an incident in ibn Caliph Umar Tälib ibn Abi the Ali that al-Khatäb should pay second ruled which Caliph's the to as a result of mistaken miscarriage who suffered woman a compensation jurists differences however the to the There among as of opinion whether are orders. funds from funds from be the the or private of officer or public paid should compensation 275 justice. judge responsible for such error or miscarriage of
14(7)
No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
This is to avoid double prejudice against the offender and is in full conformity with the Islamic principles of justice. It is evident from the above analyses that even though Anglo-American
and Civil law
judicial from in Islamic differ the respects procedure, some principles of a may procedure into Article law formulated 14 ICCPR the the to ensure proper hearing fair of of rule and 272ReportedBy Ahmad. Seee.g. al-Zuhayli, W., (1997) supra, note 77 above,Vol. 4., p.2969.
273See e.g. Ibn Sa`d Al Darib, S., al-TandhIm al-Qadd'i fi al-Mamlakah al-Arabiyyah al-Sa'udiyyah fi Daw' al-Shari'ah alIslämiyyah, (Arabic) (1984) Vol. L, p. 250. 274See Qadri, A. A., Justice in Historical Islam (1968) and Qadri, A. A., (1986), supra, note 22 above, pp. 484 and 497-498. ns See e.g. al-Alwani, T. J., (1996) supra, note 220 above, 284-286.
150
administration
human legal justice all other rights are generally of protection and of
law. In Islamic with compatible
the Resolution adopted after the First International
Conference on the Protection of Human Rights in the Islamic Criminal Justice System held in Siracusa, Italy in 1979, the Conference resolved that "the letter and spirit of Islamic Law in the the the accused of criminally are complete the rights protection of subject of on 276 international law". human The harmony with the fundamental principles of rights under Resolution identified the following minimum guarantees for the criminally
accused under
Islamic law: (1) the right of freedom from arbitrary annihilation;
arrest, detention, torture, or physical
(2) the right to be presumed innocent until proven guilty by a fair and impartial tribunal in accordance with the Rule of Law; (3) the application of the Principle of Legality which calls for the right of the accused to be tried for crimes specified in the Qur'an or other crimes whose by determined Shariah Law and content are meaning clear and well-established (Islamic Law) or by a criminal code in conformity therewith; (4) the right to appear before an appropriate tribunal previously established by law; (5) the right to a public trial;
(6) the right not to be compelled to testify againstoneself; (7) the right to present evidence and to call witnesses in one's defense; (8) the right to counsel of one's own choosing; (9) the right to a decision on the merits based upon legally admissible evidence; (10) the right to have the decision in the case rendered in public; (11) the right to benefit from the spirit of Mercy and the goals of rehabilitation and be imposed; in the to the penalty and of consideration resocialization (12) the right of appeal? "
individuals identified to applicable all under Islamic law above are The minimum guarantees 278 Cairo Article 19(b) OIC Declaration kind. Thus the discrimination of any of without justice is to "The to to that: everyone". guaranteed resort right provides
276The Conference was held at the International Institute of Advanced Criminal Sciences in Siracusa, Italy between May 2831 1979 and was attended by 55 penal jurists from 18 different countries including Algeria, Egypt, Jordan, Libya, Mauritania, Syria, Saudi Arabia, Somalia, Sudan and United Arab Emirates. Also in attendance were jurists from Belgium, France, Italy, Switzerland, United States of America, Yugoslavia, and the United Kingdom. See Bassiouni, C. M., (ed. ) The Islamic Criminal Justice (1982) at 249.
277Seea reproduction of the Resolution in Bassiouni, C.M., (ed.) (1982) ibid, at 249-250.
278See p. 140 above, for Qur'anic reference to the fact that the whole of mankind has right to justice under Islamic law without discrimination.
151
FREEDOM
FROM RETROACTIVE
CRIMINAL
LAW
Article 15 1.
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
2.
Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.
This right which reiterates the principle of legality also falls within the guarantee of the due process of law. The wordings of Article prohibition
15(1) does not limit this right only to the
laws but heavier than the one criminal also prohibits a penalty retroactive of
law This duty by State the time the the to at offence was committed. places a on prescribed defined by law for legal their that offences and penalties remain clearly criminal ensure international in law Article it 15(1) imperative The to that reference makes certainty. international crimes must also be well defined for legal certainty. from the prohibition of retroactivity, criminal
Article
15(2) excludes
acts or omissions that were at the time committed,
offences under international customary law. Thus State Parties can under this
laws. through war or genocide punish crimes, piracy retroactive national possibly exception In that case the punishment is made legal by the prohibition of those offences under international law. The non-retroactivity
principle is also reversed in respect of a lighter punishment
last The Article 15(l) the of an offence. commitment sentence of which allows after enacted for the retroactive application of a lighter penalty, was proposed by Egypt during the 279 It places a duty on the State to retroactively apply a lighter penalty subsequently drafting. heavier in the the of a one after commission of relevant offence. place enacted
This
demonstrates a humanitarian approach to criminal law. Most international law scholars law. is to the It trend this rule of non-retroactivity as a exception of modem criminal consider interesting to note however that, based on the precedent of the Prophet, the classical Islamic jurists had also stated in their writings an exception to the rule of non-retroactivity
of
law provides for a lesser penalty than that existing when the law the new where criminal
179See E/CN. 4/425; E/CN. 4/SR. 159 Par. 94, cited in Nowak, M., (1993) supra, note 5 above, p. 279.
152
280 held lesser It in to the penalty was apply retroactively. which case was committed, offence is possible therefore that Egypt's proposal in that respect during the drafting of Article 15 of jurisprudence. by influenced Islamic ICCPR the was The Qur'an had from inception reflected the rule of non-retroactivity
in some of its
injunctions and so did the Prophet in some of his Traditions. Generally the Qur'an points out 281 first laws. He Messenger His A sends a with that God never punishes a people until instance of non-retroactivity specific prohibiting
of laws in the Qur'an is demonstrated in the laws
formerly lawful Arabs. Qur'an The the that types among were marriage of some
follows: as provided "And marry not women whom your fathers married, except what is past; it was a (also) indeed. Prohibited to you are your abominable custom shameful, odious and for is God Most-forgiving, Most daughters, is what past; sisters... except mothers, Merciful. " 282
Thus while those who violate the prohibited degrees in marriage after the revelation of it law did before (what the those was revealed who a sin, was committing were these verses law. Also during his last the of sermon on grounds of non-retroactivity past) were exempted ignorance, back (i. before blood to the declared traced that Prophet period of e. any guilt the because Islamic in be disregarded bloodArabia) the Islam dawn provision on should the of That this then. homicide to for torts applies all other rules of was not operative and money Prophet Islam in is the that law the of wipes out any prohibited saying Islamic also reflected 283 into is Islam for it. Thus that comes not accountable who any any person preceded conduct indicates becoming Muslim. This is before that there a clearly committed prohibited conduct liability no
under Islamic law prior to legislation.
Thus Article
19(d) of the OIC Cairo
Declaration provides that "There shall be no crime or punishment except as provided in the Shari' ah".
THE RIGHT
TO RECOGNITION
AS A PERSON BEFORE THE LAW
Article
16
Everyone shall have the right to recognition everywhereas a personbefore the law.
Seee.g. al-Saleh,O.A., (1982) supra, note 157 abovepp. 62-65; Seealso Kamel, T., "The Principle of Legality and its Application in Islamic Criminal Justice", in Bassiouni,C.M., (ed.) TheIslamic Criminal Justice (1982) pp. 149-169.
"' See e.g. Q 4: 165; 6: 19; 17: 15-16; 28: 59; 35: 25. 292Q4: 22-23 (emphasis added).
153
The importance of this right derives from the fact that the violation of any human right law. due Without be the through process of recognition as a person remedied may only before the law an individual
will
never be able to bring any claims before the law.
Conversely, if everyone has a right to be recognised as a person before the law then everyone 284 is in full harmony law. duties. Islamic This In case of bear has capacity to with rights and in law infant, Islamic imbecile that their them insane, guardian shall represent provides the or law. 285Article 8 of the OIC Cairo Declaration thus provides that: "Every human being has the right to enjoy his legal capacity in terms of both be lost impaired, he be this or shall capacity should commitment, obligation and " by his guardian. represented
THE RIGHT TO PRIVACY
Article 17 1.
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2.
Everyonehas the right to the protection of the law against such interferenceor attacks.
The right to privacy guarantees individual autonomy and thus an important aspect of freedom, liberty and respect for human dignity. Article
17(1) however prohibits only
interpreted has HRC interference The this to that mean no with privacy. unlawful or arbitrary itself interference with privacy can take place "except in cases envisaged by the law-which Covenant" "reasonable in the the of and objectives provisions, aims and with must comply "286 Article 17(2) also guarantees the right to protection of the the particular circumstances. law against such interference or attacks and thus places a positive obligation on the State to horizontally. Generally, both the that laws to to and right vertically right protect enact 287 individual for human being". "guarantees the the the respect existence of privacy therefore 288 be Volio has notably observed however The scope of right to privacy can very vague. that "(a)lthough
it is an old right and some of its manifestations have long been recognized,
the right to privacy
has acquired a new and special place in the law, as the means for
invading the private life of individuals have multiplied and become more sophisticated and 283Reportedby Muslim. Seee.g. Karim, F., (1994) supra, note 197 above,Vol.!, pp. 137-138,Hadith No. 63. 284SeeJoseph,Schultz and Castan,(2000) supra, note 23 above,pp.201-205. 285See e.g. Qadri, A. A., (1986) supra, note 22 above, p. 406. 281General Comment 16, Par. 3 and 4.
197Nowak, M., (1993) supra, note 5 above,p.288.
288See e.g. Dissenting Opinion of Mr. Hemdl in Coeriel and Aurik v. The Netherlands, Communication No. 453/1991, U. N. . Doc. CCPR/C/52/D/453/1991 (1994).
154
289 Specific aspects of privacy addressed by the HRC include famil Y290,home intrusive". '291 292honour and reputation, 293name,294person and body. 295 The regulation of correspondence, in interference has been behaviour takes that also considered place private as with sexual in Australia296 Toonen "In far The HRC Article 17. that: observed v so as privacy under in is it is is that 17 sexual adult consensual activity private undisputed concerned, article find Committee Tasmanian law `privacy"'. The to that by the went on a of concept covered interfered homosexual with the author's privacy and thus violated practices that criminalised 297 been for decade. if had The ICCPR Article 17 of the not enforced a even the provisions Committee had also rejected the State Party's argument that the law was justified on grounds domestic law State. held it be left It "cannot to the the that of which must of public morals, issues Covenant (that) 17 for the the moral are exclusively a article of purpose of accept ... door from to domestic the this the would open withdrawing as concern, of matter 298 interfering large Committee's scrutiny a potentially number of statutes with privacy". The right to privacy is also generally well stressed under Islamic law. The Shari `ah intrusion into life, home the and correspondence of others or private unlawful prohibits any integrity. is in honour There Qur'an the actually a chapter and a person's of the violation 299 in Chambers", Islamic "The Apartments" "Private which many rules on privacy or titled Generally Shari `ah the prohibits arbitrary suspicion and spying are specified. and morality 300 And "... Avoid ". by that spy not on each other... much suspicion; ... providing others on
289Volio, F., "Legal Personality, Privacy, and the Family Life", in Henkin, L., (1981) supra, note 6 above, p185 at 192-3. 290See General Comment 16, Par.5. See also Shirin Aumeeruddy-Czi, Jjra and 19 Other Mauritian Women v. Mauritius, Communication No. 35/1978 (9 April 1981), UN Doc. CCPR/C/OP/l at 67 (1984). 291See General Comment 16, Par. 8. "Searches of a person's home should be restricted to a search for necessary evidence harassment. " be to to amount allowed not and should
292SeeGeneralComment 16, Par. 8. "Compliance with article 17 requiresthat the integrity and confidentiality of be guaranteeddejure and defacto.... Surveillance,whether electronic or otherwise, interceptionsof should correspondence forms be and of conversations telegraphic of communications, wire-tapping recording should and other telephonic, (17 July 1980),UN Doc. Supp.No. Estrella Uruguay, Communication No. 74/1980 Angel Miguel See v. also prohibited". 40 (A138/40) at 150 (1983), Par.9.2. 29' SeeGeneralComment 16,Par.11. "Article 17 affords protection to personalhonour and reputation and Statesare under legislation See Tshisekedi. Zaire, Communication Nos. 241/1987 to that end". to v. adequate also and provide an obligation 242/1987. 294Coeriel and Aurik v. The Netherlands, supra, note 288 above. Par. 10.2. "The Committee is of the view that a person's identity important component of one's and that the protection against arbitrary or unlawful an surname constitutes interference with one's privacy includes the protection against arbitrary or unlawful interference with the right to choose and change one's own name".
295SeeGeneralComment 16,Par.8. "So far as personaland body searchis concerned,effective measuresshould ensurethat dignity in is being being the the Persons a manner consistent with out of person who carried searched. are searches such by Stateofficials, or medical personnelacting at the requestof the State,should only be examined body to search subjected by personsof the samesex". 296Communication No. 488/1992, Human Rights Committee, (04 April 1994), UN Doc. CCPR/C/50/D/488/1992. 297ibid., Par. 8.1 and 8.2. 29sibid., Par. 8.6. 296i.e. Q49. 1 Q49: 12.
155
More specifically on right to privacy for the family and home, Qur'an 24: 27-28 provides that: "... Enter not houses other than your own, until you first announce your presence and invoke greetings of peace upon those therein; that is best for you, that you may be heedful. Even if you find no one therein, do not enter until permission is given to for is God if then that to away; purer go away go you; and are asked you you, and knows all that you do. "
To drive this point home, the Prophet had stated in one Tradition that a man should not for if he does he have it. into house so would entered without permission, a even peep Islamic law also prohibits interference with the correspondence of others. The Prophet had it in letter hell"Anyone the that: of another without permission reads will read who warned fire". 30' Also in prohibiting the violation of the honour and reputation of others the Qur'an 302 insults These both defamation, to and offensive nicknames. rules apply scoffing, prohibits State and private intrusions into privacy. Under Islamic law, only State officials conferred with the necessary jurisdiction violate
injunctions
to privacy.
They may only do so for the
investigations, searches or reasonable
and this must be in accordance
the above Islamic
purpose of conducting
may
on right
303 during Caliphate ibn law. is Umar It due that the the reported of al-Khatäb of process with he used to go round on night patrol of the city of Medina.
One night while on patrol he heard
he knocked from house door find but drunkenness the to a and on coming out some noise of him. He then climbed answered no one
over the wall of breaking
homeowner down the accused and shouted have if I committed replied, man
without
God's
that
command
announcing
yourself
invoke and your presence in violation
the law prohibiting
one sin you have committed
God's that command against on us despite
and saw a drunken party inside, he intoxicants.
four sins to find out. You spied
"spy not on each other"304; You climbed
"enter houses through nor greeting
in violation
The
the proper
over the wall
doors"305; You
of God's command
entered
that "announce
greetings of peace upon those therein"306; You entered without
of God's
command
that "do not enter until
permission 307 The Caliph Umar was abashed and he said, "You you".
permission
is given
are right and I must forgive you
indicted Caliph "that is fifth the be The then the to saying your man sin, you claim sin". your 301SeeAl-Suyüti,J.,al-Jämi` al-Sagir(Arabic)(1964)p.165. 302Q49:11.
303See al-Saleh, O. A., (1982) supra, note 157 above, p. 69. 3°' Q49: 12. "5 Q2: 189. Q24: 27
156
Caliph and protector of Islamic law, how can you then say you forgive what God has 308This vividly illustrates the importance of right to privacy under Islamic law , prohibited. individuals for be due legal to the that cannot any reason violated contrary of privacy and OIC Cairo Declaration 18 thus provides that: Article the of process. "(b)
Everyone shall have the right to privacy in the conduct of his private affairs, in his home, among his family, with regard to his property and his It is not permitted to spy on him, to place him under relationships. besmirch his State him The from to good name. shall or protect surveillance arbitrary interference"
(c)
A private residence is inviolable in all cases. It will not be entered without permission from its inhabitants or in any unlawful manner, nor shall it be demolished or confiscated and its dwellers evicted. "
However, since Islamic law prohibits and criminalises homosexuality the question may be raised whether the HRC will follow its decision in Toonen's case if faced with a Muslim State's domestic law prohibiting homosexuality vis-ä-vis the right to privacy under Article 17.
The question of reasonableness and public morals are relevant here. Toonen's
v.
Australia does not provide a clear answer and may be distinguishable from a Muslim State laws (i) Tasmania, inter the that: exception of all with criminalizing alia, on grounds, homosexuality had been repealed throughout Australia; (ii) the Tasmanian law had never been used and there was ongoing debate for its repeal; (iii) the Federal Government of Australia
had acknowledged also that a complete prohibition
of homosexuality
was
fabric Australian did the therefore to moral society of and sustain not argue that unnecessary 309 based laws were on reasonable and objective criteria. the challenged The situation will apparently be different in the case of Muslim States. Homosexuality is generally seen to be strongly against the moral fabric and sensibilities of Islamic society law. legally The Islamic HRC distinguish is morally and under may perhaps prohibited a and State its domestic law from decision in involving Muslim Toonen's the of a case case. similar That will however require a consideration of the public sensibility and morality obtainable basis Muslim that on and concede some margin of appreciation on moral societies within in that regard. Although the HRC does not presently apply the States Muslim to grounds doctrine, is the this HRC thesis that the one of arguments of appreciation of need to margin "7 Q24:28 309This incident has been reported in slightly varied versions by different narrators but all depict the same important individual privacy under Islamic law. See e.g. Tabandeh, S., A., (1970) supra note of violation of prohibition of principle 208 above, pp. 31-32. 309See note 296 above.
157
involving for its because doctrine resolving cases of utility adopt the margin of appreciation background Covenant. The Parties States issues to the cultural and of public morals influential in in Members Committee time the the also an role will play at point orientation of in Court had Supreme Bowers here US is instructive that the It to v observe that case. Hardwick rejected on grounds, inter alia of public sensibility and morality, the claim that 310 by US the homosexual sodomy was protected constitutional right to privacy. THE RIGHT
TO FREEDOM
OF THOUGHT,
CONSCIENCE
AND RELIGION
Article 18 1.
Everyone shall have the right to freedom of thought, conscience and religion. This right his belief freedom, have freedom include to to of choice, religion or and or adopt a shall in his in to individually or private, manifest others and public with or community either in belief worship, observance, practice and teaching. or religion
2.
No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3.
Freedom to manifest one's religion or beliefs may be subject only to such limitations as health, law by to safety, order, or morals public necessary protect and are are prescribed or the fundamental rights and freedoms of others.
4.
The StatesParties to the present Covenant undertake to have respect for the liberty of legal guardiansto ensurethe religious and moral education applicable, and, when parents in their conformity with their own convictions. children of
Despite the diverse ideological and religious leanings of the international community basic freedom in the to the is of right of notion of modem society an acceptance there in first is Article 18(1). It the of sentence one thought, conscience and religion as contained define democratic The to the foundations society. attempt and content pluralistic of a the of include in Article 18 UDHR ICCPR to the terms the that 18 the clause Article of of of of (ones) freedom includes to religion change "this right
or belief'
met with opposition
Afghanistan, Saudi Arabia, Yemen Egypt, Muslim from and countries such as, principally 311 deletion in Instead its deletion. for a compromise was achieved of a complete who pressed include freedom have "(t)his language to to to the or adopt a religion right shall the change of indicated freedom have "to has however The HRC that the (ones) to belief or choice". of or
310(1986) 478 US 186. See also the view of the European Court of Human Rights in Otto-Preminger-Institut. v. Austria in a European Convention, at p. 187 below. c.f. Self, J., "Bowers v Hardwick: A Study 10 Article the blasphemy of under case of 10 Human Rights Quarterly, p. 395 and Thornton, B., "The New International Jurisprudence on the (1988) Agression", of Right to Privacy: A Head-on Collision with Bowers v Hardwick" (1995) 58 Albany Law Review, p. 725. "'See Partsch, K. J., "Freedom of Conscience and Expression, and Political Freedoms", in Henkin, L., (198 I) supra, note 6 211. 207 at p. above,
158
belief "to freedom include to the one's current religion or replace with another or adopt" 312 belief'. the to retain one's religion or as right well as views, atheistic adopt The interpretation of the right to freedom of thought, conscience and religion to include freedom to change one's religion or even to adopt atheistic views has not been without Islamic Islamic to the with respect crime of apostasy scholars under controversy among 313 The different views will be analysed below. However, the trend among contemporary law. Islamic scholars on the issue of religious freedom under Islamic law has mostly been towards Qur'anic that: the states which provision emphasising "There is no compulsion in religion: truth stands out clear from error; whoever has handhold believes in God the trustworthy that will most grasped and rejects evil 314 knows hears " God break, things. all and and never
Elaborating on the principle of non-compulsion to adopt Islam, Ismail al-Fariigi had Qur'an every human is endowed with the capacity to by the the that wordings of emphasised integrity. illustrated is He intellect if the human God the with candidness and exercised know invented by Islamic to the thinkers to a story early with reference about a understand capacity deserted island "who devoid Yagzdn315 Hayy ibn being grew up on a of called mythical humans and hence tradition, and who gradually led himself by sheer intellectual effort from ignorance, to naive realism, to scientific truth and finally, to natural reason and the discovery is however human "316 There God. the to also capacity misunderstand, transcendent of by influenced the surrounding circumstances of nonor sometimes misled when especially isolated existence. Thus the Muslim is obliged by his faith, which he believes as the only its humanity dogmatically by but to to not claims nor coercion rationally present true one, 317 fair The Qur'an intellectual argument wise and preaching. persuasion, points out through it does for his it does his so own good and whoever rejects so at accepts own that whoever 318To be loss and none may advocate thought or religion by coercion is, in the compelled. intellection (and) "(t)o the tamper threat to with process of constitutes a al-Färügi, of words 319 is from Shari `ah. the integrity the and null and void standpoint authenticity" of and man's
312GeneralComment 22, Par. 5. 313Seee.g. Tabandeh,S., (1970), supra, note 208 above,pp.70-73.
314Q2: 256. For e.g. See generally al-Farugi, l. R., Islam and other Faiths, Ed. Siddiqui, A., (1998) especially pp. 129-160 and 281-302.
315meaning "The Living" son of "The Awake".
316al-Faruqi, I. R., supra, note 314 above, p. 45. For an English translation of the story of Hayy ibn Yagzdn See Ockley, S., (Trans. ) The History of Hayy ibn Yaqzan (1986). "7 See e.g. Q16: 125. 318See e.g. Q10: 108. 319al-Farügl, (1998) supra, note 314 above, p. 291.
159
Uthmän has also observed that although the Islamic State has a duty to promote the force it is but Islam, Islam, duty to to to allowed anyone not embrace of rather a religion 320 deny freedom belief. The to their those seek people who of prevent and rule monitor law Muslim Islamic that male who marries a non-Muslim wife cannot compel her a under into Islam and also the recognition of the status of non-Muslims within the Islamic State indicates that Islamic law does not advocate forced conversions. According to the 12th Century Hanbalä jurist, Ibn Qudamah: "It is not permissible to force a non-believer into embracing Islam. For instance if a. non-Muslim citizen (Dhimmi) or a protected alien (Musta `min) is forced to embrace Islam, he will not be considered as a Muslim except his embrace of Islam is of his own choice... The authority for this prohibition of coercion is the words of God Most High that says: "There is no compulsion in religion". 99321
Some traditional interpreters of the Qur'an such as al-Tabari however hold that the "no "people book" (e. Christians to the the Jews) applied only of verse g. and and compulsion" did not extend to the Arab idolaters or polytheists who did not follow any "heavenly" based Al-Tabari's He the the was on cause of revelation view of verse. narrated that religion. the two sons of a certain Muslim man of the tribe of Salim ibn `Awf, both of whom had before Islam father Christianity in to Medina. their The the advent of came visit embraced father was very grieved about them and requested them to convert to Islam but they declined. The father then brought both of them to the Prophet Muhammad and asked him to intervene. It was on this occasion that the "no compulsion" verse was revealed, and the man had to leave the two sons with their faith. Al-Tabari thus held that the verse applied only to either 322 book" "peoples idolaters. Where this view is the Christians or other of and not to followed, it will deny polytheists a right to freedom of thought, conscience and religion law. Conversely, interpreters, human international rights other such as al-Zamakhshari, under Qur'an Qur'anic 10: 99 "And had that: such as verses which states your Lord additional cite willed,
have believed. So on earth would will everyone
you, (0 Muhammad), compel
believers? ", become "people to book" but they that the the contend not only until of mankind free from being into belief beings if God had human compelled are since willed, all 323 have believed". Ibn Hazm and some other jurists contend that "everyone on earth would
320Uthmän, M. F., (1982)supra, note 114 above,p. 91. 321Ibn Qudämah,al-Mugni, (Arabic) Vol. 8., p. 144. 322Seeal-Tabari, M., TafsIr al-Tabari, (Arabic) (1968) Vol. 9 p.347.
323See al-Zamakshari, J., al-KashdfAn Hagd'iq al-Tanzll (Arabic) (n. d. ); See also Q 6: 107-108, which says: "Had God beside Him in worship and We have not made have taken others they not would you a watcher over them nor are you willed, insult not those whom they worship besides God, lest they insult God And dispose their to affairs. them of set over
160
by been had the "verse of the sword" which says: "And "no-compulsion abrogated the verse" fight the polytheists altogether as they fight you altogether, and know that God is with those him, is in (to Him)"324 duty thus, to keep their and according compulsion allowed who 325 religion. Some contemporary Muslim scholars and jurists dispel this view and point out that this 326 Qur'anic Abü has has Zahrah the that experience. narrowed also position was an extreme into An Caliph, Umar, Islam. the supports no compulsion which second of stated a precedent have Caliph to the the to Christian with some reported come request which was woman old Caliph fulfilled,
invited her Caliph Islam. to the which after
The woman declined. The
Caliph was reported to have then stated his sincerity of purpose in the following words: "My Lord, I did not intend to compel her, because I am aware that there must be no compulsion in become distinct and distinguished from the wrong has the certainly path right religion... 327 This incident no doubt indicates an attitude of non-compulsion and freedom of path .,, human freedom Muslim the Today, address rights scholars who question of of most religion. hold follow Islamic law the that moderate view and religion, and thought, conscience 328 The in faith. dissemination the rule of religious of matters of anyone compulsion prohibits (all) to the Way of thy Lord with wisdom and beautiful is "Invite law Islamic under best "329 in does them that and gracious... are most which ways not with argue preaching and Art. forced Thus 10 OIC Cairo imply the conversion. of any notion of also support or Declaration states that: "... It is prohibited to exercise any form of compulsion on man or to him in ignorance to to his to another convert order religion or or atheism". poverty exploit doings; have fair-seeming its Thus We knowledge. Lord is their to then to their made each people own without wrongfully do inform they to them that He then all of used shall return and
324Q9:36. 325Seee.g. AN Zayd, M., al-Näsikh Waal-Mansükh: Dirdsah Tashri'tyyah, Ta'rikhiyyah Nagdiyyah (Arabic) (1963) Vol. 2., pp503-583and Ibn Hazm, A., al-Muhallä, (Arabic)(n.d.)Vol. 2,p. 195. 326Seee.g. AbüSulaymän,A. A., TowardsAn Islamic Theoryof International Relations: New Directions for Islamic Methodology and Thought(1993) pp. 44-45.
327See Abü Zahrah, M., TanzIm al-Islam li al-Mujtama' (Arabic) (n. d) p. 192. 328See e.g. Chaudhry, M. S., (1995) supra, note 82 above, pp. 26-30; Ahsan, M. M., "Human Rights in Islam: Personal Dimensions" (1990) 13 Hamdard Islamicus, p. 3 at 7-8; Ishaque, K. M., "Human Rights in Islamic Law" (1974) 12 Review of in Islam: Principles and Precedents" 30 35; Husain, S. S., "Human Rights Jurists, Commission International p. at of the (1983) 1 Islamic and Contemporary Law Quarterly, p. 103 atl 13-114 and Mahmood, T., "The Islamic Law of Human Rights" (1984) 4 Islamic and Comparative Law Quarterly, p. 32 at34-38; See also e.g. Art. 7 of "Basic Principles of Islamic State" adopted by the Convention of Muslim Scholars and Thinkers representing all schools of Islamic thought in Pakistan in 1951 which stated that: "The citizens shall be entitled to all the rights conferred upon them by Islamic Law i. e. law,... freedom belief limits freedom in " be the Maududi, A. A., the of of religion and within of worship... assured they shall The Islamic Law and Constitution (1980) 7th Ed., p. 333. See also the Communique of the International Conference on Islamic Law held between the leading scholars of Arabia and Europe which stated inter alia, that: "The individual is free in he wishes to embrace, and it is unlawful to compel anyone to embrace a religion " and citing the nothe to creed regard in Nadwah 'Ilmiyyah Hawl al-Shari'ah al-Islämiyyah Wa Huqüq to that al-Dawalibi, effect, authority as verse compulsion H. M., Freedom Karnali, Expression (Arabic) in Islam (1997) p. 88. See also Art. XIII of the in fi of cited al-Islam al-Insän Universal Islamic Declaration of Human Rights(1981) which says: "Everyperson has the right to freedom of conscience beliefs his in religious with accordance and worship 329Q 16: 125.
161
This brings us to the question of apostasy under Islamic law vis-ä-vis the right to freedom of thought, conscience and religion. Apostasy from Islam is a topical issue under the concept of freedom of thought, its because death of classification religion as a crime and punishable with under conscience Islamic law. This apparently contradicts the basic principle of non-compulsion
traditional
international It human the also conflicts with above. rights understanding of advanced freedom of thought, conscience and religion. In paragraph 5 of its General Comment 22, the HRC observed, inter alia, that: "Article18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to belief their religion or or to convert. "330 recant
There had been differences amongst Muslim jurists and scholars about the definition and law Islamic traditional Islam. The the times apostasy under since early of of punishment Hanbali jurist Ibn Taimiyyah observed that some of the successors to the companions of Prophet Muhammad known as al-Täbi'ün
such as Ibrahim al-Nakha`i (d. 95A. H/718C. E)
his jurist Sufyän (d. 161A. leading H/884C. E) the author of time, al-ThawrI of and a who was al-Jdmi'
al-Kabir
and al-Jämi'
important (two compilations al-SagIr
of the Prophet's
held the view that a Muslim apostate must never be sentenced to death but 331 Their views conform back Islam invited Qur'anic be to the with rule of should . "Invite (all) Lord to beautiful that the thy says: way of with wisdom and propagation in ways that are best and most gracious.., "332 them with argue and preaching;
Traditions),
Both El-Awa and Karnali show through references to the Qur'an, the Sunnah, the Caliphs, the the rightly guided and views of some of classical as well as of practice jurists Islamic to that and scholars establish simple apostasy neither constitutes contemporary 333 death both They the hadd-type nor attracted penalty. offence cited the twelfth century a Mäliki jurist, Abu al-Walid al-Bäji as stating that apostasy is "a sin for which there is no hadd punishment. "334 Although Hamidullah included the crime of apostasy in his Muslim
13°General Comment 22, Par. 5. 331SeeIbn Taymiyyah, T., al-Sarim al-Maslül 'alb Shätim al-Rasfil (Arabic) Abd al-Hamid, M. M., (Ed.) (1398AH) p. 318; (1329AH) Vol. 2, p. 134; Ibn Quddmah,M., al-MugnI (1981) Vol. 8. (Arabic) W., Kitäb A. al-MIzän p126. al-Sha'räni, 332 Q 16: 125.
333See El-Awa, M. S., Punishment in Islamic Law (1982) p50-56 and Karnali, M. H., (1997) supra, note 328 above pp. 87107 See also. Sachedina, A. A., "Freedom of Conscience and Religion in the Qur'an" in Little, D., Kelsay, J., and Sachedina, A. A., (eds.) Human Rights and the Conflict of Cultures: Western and Islamic Perspectives on Religious Liberty (1988) p. 53 at 76-83.
334El-Awa, M. S., (1982) ibid. Karnali, M. H. (1997) ibid.
162
Conduct of State, he went on to indicate that: "The basis of Muslim polity being religious and is it difficult linguistic, for to the not or appreciate reason penalizing this act ethnological not it For constitutes a politico-religious of apostasy.
rebellion. "335Contemporary Muslim jurists
in differ form to denouncing thus the whether apostasy as simpliciter of a person scholars and the Islamic faith is a hadd-type offence at all, and also as to whether it attracted the death jurists define in Many terms of rebellion against the the and apostasy of scholars penalty. State, where a Muslim-subject of the Islamic State after denouncing Islam joins with those State Islamic the take and thus commits a political offence against the arms against who 336 The contention is that simple apostasy, in the sense of an individual denouncing State. Islam without more, wherever mentioned in the Qur'an does not stipulate any worldly 337 described is but in hereafier. The the only as attracting severe punishments punishment death punishment for apostasy was based on a reported Tradition of the Prophet that said: 338 his kill him". Some Muslim scholars have however "Anyone who changes religion, identified this Tradition as a solitary (ähäd) Tradition while others allege weakness in its transmission (isnäd). It has been contended also that there is no precedent of the Prophet 339 into Islam death for to Elor sentencing anyone apostasy simpliciter. compelling anyone Awa thus concluded that "the Qur'an prescribes no punishment in this life for apostasy, (and) (t)he Prophet never sentenced a man to death for it, (but) (s)ome of the companions of the Prophet recognized apostasy as a sin for which
there was a to `zir (discretionary)
legislative discretion s340 Thus the the Islamic State. the matter placing within of punishment. Under Article 18(3) of the ICCPR, the right to freedom of religion and beliefs is not by is the There that: provision restriction a absolute. "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or fundamental freedoms the rights or and of others". morals
... Hamidullah, M., (Revised7`hEd., 1997)supra, note 190 above,p. 174,Par.330.
336See e.g. Abduh, M., Tafsir al-Manär (1947-48) Vol. 5, p. 327; El-Awa, M. S., (1982) supra, note 333 above, pp. 49-56; Rahman, S.A., Punishment ofApostasy in Islam (1978) Chapter 2. Al-Ganüshi, R., al-Huriyydt al-Amah fi al-Dawlah a! Isldmiyyah (Arabic) (1993) pp. 47-51; Shaltüt, M., al-Islam AgIdah Wa SharI'ah (Arabic) (n. d. ) p. 292-293; al-Samurai, A. R. N., Ahkäm al-Murtaddfi al-Shari'ah al-Islämiyyah (Arabic) (1968) p. 144; Mahmassäni, S., Arkdn Huqüq al-Insän fi 123-124. (1979)p. (Arabic) al-Islam
337Seee.g. Q 2:217; Q 3: 86-91; Q 5:54; Q 16:106.
338Reported By al-BukhärI. See e.g. al-Asgalänt, Ibn Hajar, Bulugh al-Maram (With English Translations) (1996) p. 428, Hadith 1032. 339See e.g. Rahman, S.A., (1978) supra, note 336 above, p. 63; al-'Ili, A. H. H., al-Huriyyah Amah (Arabic) (1983) p. 339; a! 336 (1979) S., Mahmassäni, note above. supra, and 340E1-Awa,(1982) supra, note 333 above, p. 56.
163
That would perhaps be in consonance with the argument of contemporary Islamic it is States Muslim that that not the changing of one's religion of some scholars341 and its in law but Islamic is that manifestation under a manner that prohibited simpliciter threatens public safety, morals, freedom of others or even the existence of the Islamic State itself. In its second ICCPR periodic report Sudan stated in that regard that "conversion from Islam is not an offence in Sudan but only the manifestation of such conversion in a manner 342In accordance with the requirements of due process that adversely affects public safety". has further HRC that: law the observed of "Article 18(3) permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. The freedom from coercion to have or to adopt a religion or belief and the liberty of parents and be " (emphasis to religious and moral education cannot restricted. ensure guardians added).
THE RIGHT
TO FREEDOM
OF OPINION
AND EXPRESSION
Article 19 1. Everyoneshall have the right to hold opinions without interference. 2.
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, in form in in the of art, or through any other media of his or print, writing orally, either choice.
3.
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary; (a) For respect of the rights or reputation of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.
The intellect is the greatest instrument of human life and its full potential can only be ideas individuals. Freedom interaction through of among of opinion and expression achieved
is a birthright of every human being which stimulates dialectical intercoursethat aids human development and well being. Expression is the outward manifestation of a person's opinion, denied is freedom liberty completely where of expression is denied. Freedom thus a person's
3a' See e.g. note 339 above. 342See e.g. Par. 127 and 133 of Sudan's 2ndICCPR Periodic Report of 1997 (U. N. Doc. CCPR/C/75/Add. 2. of 13/03/97).
164
has been long recognised as "one of the most precious therefore of opinion and expression 344 "great importance for freedoms". all other rights and rights of man"343and also of The right to hold opinions, being internal and private, is absolute and is here separated from the right to freedom of expression. "Opinion" and "thought" are quite synonymous, but has been in beliefs "thought" Article 18 above, "opinions" associated with religion or since here is deemed to point more towards political, secular and civil matters. 345 Although
a
influenced be by it factors, may external opinion cannot actually be restricted person's because it is an event of the mind and hardly interferes with the rights of others. In contrast, freedom of expression is a public matter that could easily interfere with the right of others if is Freedom thus not absolute. During the drafting of Article 19, of expression not controlled. it was appreciated that while "freedom of expression was a precious heritage" it could also be "a dangerous instrument" against public order and the personality of others. 346Thus while the right to freedom of expression was made as comprehensive as possible to cover the imparting information ideas kinds through any media of of and and receiving of all seeking, it it "special duties carried with and responsibilities"347 and also subjected to choice, one's Article 19(3). under certain restrictions Due to the importance and preciousness of the right to freedom of expression, there were differences of opinion as to the scope of the limitations upon the right during the drafting. 348 In its effort to define that scope, the HRC has pointed out that "when a State party imposes freedom the on exercise of of expression, these may not put in jeopardy certain restrictions the right itself (and) the restrictions must be "provided by law"; they may only be imposed for one of the purposes set out in subparagraphs (a) and (b) of paragraph 3; and they must be justified as being "necessary" for that State party for one of those purposes."349 Moreover, "the word `necessary' imports `an element of proportionality'
into Article
19(3): the law
must be appropriate and adapted to achieving one of the enumerated ends."35° The recognition of freedom of expression under Islamic law as a birthright of every human being is confirmed by Qur'an 55: 1-4 which states that:
343See Art. XI French Declaration of the Rights of Man and of Citizen (1789) Translated in Paine, T., Rights of Man, With An Introduction by Eric Foner (1984) p. 1 10. 344Partsch, K. J., (1981) supra, note 311 above, p. 208 at 216. 345ibid., p. 217`6 See UN Doc. A/2929, supra, note 8 above, p. 148. 347These duties and responsibilities were however not defined. 348See UN Doc. A12929, supra, note 8 above, pp. 147-152. See also Nowak, M., (1993) supra, note 5 above, p. 348ff. 349General Comment 10, Par. 4. 350See Joseph, Schultz and Castan (2000) supra, note 23 above, p.392.
165
"(God) The most Gracious!. Taught the Qur'an. Created Man (and) Taught him eloquent speech (expression). " (emphasis added).
In his pioneering work on freedom of expression in Islam, Kamali has observed that "it is generally
acknowledged that freedom of expression in Islam
is in many ways
it is freedom logical to that of religion; an extension and a consequence of complementary 51 belief Shari has `ah freedom s the the which of conscience and validated and upholds. There are a whole lot of recorded Traditions and practice during the lifetime of Prophet Muhammad and during the reign of the Rightly Guided Caliphs after him to support that freedom of speech and expression was acknowledged right from the inception of Islamic 352 Under the Shari `ah the main objective of this right is the "discovery of truth and law. 353Islamic law endeavours a balance between these two dignity". human principal upholding does its the threshold of not accommodate spread of evil obscenity and or under objectives freedom of expression. While the Qur'an affirms that God gave mankind the power and freedom of expression, it also directs mankind to always be apposite in speech. It states loves "God "Those the love that that: not utterance of public evil speech"354 and who clearly (to see) scandal broadcasted among the believers will have a grievous penalty in this life and 355 in the hereafter". Thus the freedom of expression under Islamic law is also not absolute but restricted to Examples expressions. of expressions and speech that amount to abuse and apposite speech by Qur'an Traditions the Prophet. Karnali the this and some specifically stated of are right of limitations Shari `ah freedom into "moral these of on expression restraints" and classifies "legal restraints". The moral restraints are essentially "addressed to the conscience of the believer" and include, inter alia, defamation, backbiting, lying, derision, exposing the disputation. The legal and acrimonious others, of restraints, some of which are weaknesses backed by specific sanctions include, inter alia, public utterance of evil or hurtful speech, 356 insult, libel, blasphemy. Of cursing, seditious speech accusation, and all these slanderous Shari `ah restraints, blasphemy is perhaps portrayed as the most controversial limitation on freedom of expression under international human rights law as was demonstrated through the 351Kamali, H. M., (1997) supra, note 328 above,p.6.
352See e.g. Chaudhry, M. S., (1995) supra, note 82 above, pp. 31-33. 353See Kamali, H. M., op. cit., p. 8. 354Q4: 148. assQ24: 19. 356See Karnali, M. H., (1997) supra, note 328 above, pp. 117-258. It is interesting to note that the section on the restraints Kamali's Professor lump largest work on Freedom of Expression in Islam. This perhaps portrays the nonof the takes freedom of expression and the difficulty of balancing between the right itself and the to the right of nature absolute restraints upon it.
166
international from both human Salman Rushdie by the rights affair reactions attracted 357 legalists Islamic world-wide. and advocates Blasphemy is broadly referred to under Islamic law as "Sabb Allah aw Sabb al-Rasül ", in Blasphemy Messenger". God Reviling the "Reviling overlaps with apostasy or meaning by Muslim Thus blasphemy to that also amounts apostasy. classical a an act of the sense Islamic jurists often paired the two together in their legal treatises and prescribed the death is however from law. Blasphemy Islamic both for traditional separable under penalty 358 Islam. by a non-Muslim against committed when apostasy especially The Encyclopaedia of Religion and Ethics defines blasphemy in Islam broadly as "All for (God) Names, laws, Allah Himself, His for attributes, utterances expressive of contempt Muhammad (and) All or any other at prophets or apostles scoffing prohibitions or commands law, Kamali points out that the prohibition of "359 Being (God). Allah a religious of defend dogma belief-structure is "to law Islamic the and of mainly blasphemy under 360 It is noteworthy that despite Islam's claim to being "the only religion acceptable Islam' . faiths its to it however the God"361, rule with respect other under reciprocal recognises to "not Muslims Qur'an The to those blasphemy. they also revile whom enjoins of prohibition (non-Muslims) worship beside God, lest they (non-Muslims) revile God wrongfully without its doings; fair-seeming have (God) to to their We Thus each people own made knowledge. 362 did. , inform them of all that they Lord is their final return and He shall The Shari 'ah prohibition of blasphemy as a limitation to freedom of expression thus in beliefs Muslim the the of community particular and sensibilities and aims at protecting is limitation in Seen in that faiths that explicable within the perspective, general. that of other ICCPR The 19(3)(b) the Article the on protection of public order or morals. of proviso of is incite disorder for Muslims to to blasphemous public evidenced, expressions ability of followed in the that the by the of world publication of many parts upheavals example, Salman Rushdie's Satanic Verses, which was considered as being offensive to the religious
357See e.g. generally Appignanesi, L., and Maitland, S., The Rushdie File (1990); also Kidwai, A. R., and Ahsan, M. M., (1991). Perspectives Satanic Verses Affair Muslim Civility: the Sacrilege ) on (eds. versus 358See Karnali, (1997) supra, note 328 above, p. 217. Professor Karnali concluded after a detailed analysis of blasphemy law that "The Qur'an has made no reference to the death penalty for blasphemy, and the text does not warrant Islamic under On the contrary, we would submit Qur'anic it is or a prescribed punishment or a obligation, mandate. that a the conclusion broad Qur'an blasphemy disgraces the that language the the only sustain conclusion can perpetrator of of the general that himself, it is God that invokes and a criminal offence which carries no prescribed mandatory the upon of curse himself and falls the category of ta'zir offences, whose punishment maybe determined by under automatically such, as and, punishment, " See 244. ibid, judicial p. authorities. head or competent of state the 359Hastings, J., (Ed. ) Encyclopaedia of Religion and Ethics, (1909) Vol. 2, p. 672. 360See Karnali, (1997) supra, note 328 above, p. 8. psi Q3: 19. 362Q6: 108.
167
363 by but Muslims by Muslims leaders. not only even non-Muslim religious sensibilities of There is need however in this realm to always carefully
and objectively
distinguish
intellectual interpretations from critiques of religious reasonable expressions constructive that insult or revile the sensibilities of reasonable adherents of particular religions under the has in Maududi freedom does Islam that that pointed of expression. out regard of not guise it intellectual debate discussions, is decent and religious what prohibits evil speech prohibit 364 beliefs Article 22 of the Cairo Declaration that encroaches upon the religious of others. provides that:
(a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari'ah. (b) Everyone shall have the right to advocate what is right, and propagate what is good and warn against what is wrong and evil according to the norms of Islamic SharI'ah. (c) Information is a vital necessity to society. It may not be exploited or misused in dignity the as may sanctities and a way violate of Prophets, under moral and such harm disintegrate, corrupt values or or society or weaken its faith. ethical
Applying the margin of appreciation doctrine to a case of blasphemy under Article 10 of Court Human held in Convention, European Rights the the case of OttoEuropean of the Preminger-Institut
v. Austria365 that the seizure and forfeiture of a blasphemous film in
Christ Mary did Virgin Jesus God, the were and ridiculed not violate the author's which freedom of expression guaranteed under Article 10 of the European Convention. The Court that: inter alia, observed, "The Court cannot disregard the fact that the Roman Catholic religion is the religion of the overwhelming majority of Tyroleans. In seizing the film, the Austrian in to that region and to prevent that some ensure acted religious peace authorities people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner. It is in the first place for the national authorities, who are better placed than the international judge, to assessthe need for such a measure in the light of the situation obtaining locally at a given time. In all the circumstances of the does Court Austrian the that the not consider case, authorities can be regarded present in having their this respect. 99366 margin of overstepped appreciation as
It is submitted that the HRC should follow a similar approach in considering issues of moral and religious sensibilities. 363See e.g. Appignanesi, L., and Maitland, S., (1990) supra, note 357 above, pp. 235-236. 364See Maududi, A. A., (1993) supra, note 179 above, p. 30. 365(1994) Eur. Crt. Human Rights Reports, Series A, Vol. 295-A. 366ibid. Par. 56.
168
THE PROHIBITION OF PROPAGANDA FOR WAR AND INCITEMENT TO HATRED Article
20
1.
Any propagation for war shall be prohibited by law.
2.
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
Differences of race, nationality and religion are part of the realities of human society that do not by themselves create any problems. It is the advocacy or incitement to hatred on differences lead those that to serious violations of human of creates problems which grounds important Article 20 thus the aims at objective of promoting tolerance, mutuality and rights. despite human differences. co-existence peaceful This provision constitutes a further limitation on the freedom of expression guaranteed under Article
19 above. The HRC has opined that "these required prohibitions
are fully
freedom the right of with of expression as contained in article 19 the exercise of compatible it duties " Committee The has also stated that with special and responsibilities. carries which the propaganda prohibited
under Article
20(1) "extends to all forms of propaganda
threatening or resulting in an act of aggression or breach of the peace contrary to the Charter 367 Nations". The is United Article 20(2) the object of also to combat the re-occurrence of of the horrors of Nazism that resulted mainly from incitement of racial hatred. There is a States laws to on enact obligation prohibiting such propaganda of war and advocacy positive of hatred. The Shari `ah also prohibits aggression and mischief on earth, prohibits religious
hatred and incitement
to discrimination,
violence
or hostility.
racial or
The Qur'an
in incite those many verses, to hatred. Prophet who spread mischief on earth and condemns, Muhammad had also stated in one of his Traditions that "Whoever incites to partisanship is 368 Article 22(d) of the OIC Cairo Declaration also provides that: "It is not not of us". permitted to arouse nationalistic or doctrinal hatred or to do anything that may be an incitement to any form of racial discrimination. " Islamic law however approves the call to war in case of self-defence and to counter The Qur'an persecution. or states that "Permission to fight is given to those aggression is because they are wronged, and certainly God is most capable to made war against whom "369 In that case the authority to call to war lies with the Head of State and not with them. aid 367GeneralComment 11, Par. 2. ' Reported By Abü Däwüd. See e.g. Karim, F., (1994) supra, note 197 above, Vol. 1, 488, Hadith No. 244. p. '6' Q22: 39.
169
individuals. In similar vein the HRC has also stated that Article 20(1) of the ICCPR does "not prohibit advocacy of the sovereign right of self-defence or the right of peoples to selfdetermination and independence in accordance with the Charter of the United Nations. s370
THE RIGHT
OF PEACEFUL
ASSEMBLY
Article 21 The right of peaceful assembly shall be recognized. No restrictions in imposed those than this conformity with other right exercise of in interests democratic in the of national security society a necessary health the (ordre the or or morals public protection of public), order and freedoms of others.
may be placed on the the law and which are or public safety, public protection of the rights
Article 21 guarantees the right of peaceful assembly and prohibits any restriction of the interests in in democratic is the of national security or society a necessary right except as health the or rights or morals protection of of public protection order, public safety, public in be Such the conformity freedoms necessary must also with where restriction others. of and law. This aims at protecting the right of people to come together and peacefully pursue a liberty. however Nowak is to The political observes related usually right purpose. common broad to "is than that limiting are available more enough possibilities so the proviso that 371 State. , threatening to the the or of regime critical suppress assemblies The right of peaceful assembly is recognised under Islamic law by virtue of the Qur'anic in in the and goodness and pursuit of righteousness not co-operation provision enjoining 372 There is nothing in the Shari `ah that prohibits the hostility. transgression and nurturing long it is for in ones choice as as not a rightful cause of peaceful assembly right to participate disorder as stressed in the proviso of Article 21. This to incitement or public aggression an in freedom Article 22 to the to Islamic of association addressed right applies principle same
below THE RIGHT
TO FREEDOM
OF ASSOCIATION
Article 22 1.
Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
370General Comment 11, Par. 2.
371Nowak, M., (1993) supra, note 5 above,p.371 and p.380-383 for an analysisof the permissible purposesfor interference Schultz Castan Joseph, (2000) supra, note 23 above,pp.425-432. See and also freedom assembly. of on 372Q5: 2.
170
2.
No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
3.
Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.
Freedom of associationis linked to freedom of assembly in Article 21 above. Freedom is here form join the to trade unions, which is an associated with right association and of 373 Although the is right. right subjected to similar restrictions imposed upon economic freedom of assembly, the State is granted the possibility of further restricting members of the 374 in due its forces link the the this to and police exercise of right with trade unions. armed While the freedom of peaceful assembly and freedom of association are not treated in legal jurists, Islamic Kamali has pointed out that the the treatises of classical separately Shari `ah certainly "takes an affirmative stand on rights and encourages association in pursuit " further "the He Qur'änic lawful that elaborated objectives. principle of hisbah, that is of forbidding good and evil, the principle of nasihah, sincere advice, and shürd, commanding be can equally quoted mutatis mutandis as the basic authority in the Shari `ah consultation, for freedom of association. "375 Article 22 also mentions the right to form and join trade unions for the protection of the interest of workers. This is very legitimate under Islamic law considering the tendency of in that the employer-employee relationships all over the world often exists exploitation today. The Prophet had enjoined in one of his Traditions that the adequate wage of the be by before labour-sweat the the should paid employer of the employee dries out. employee There is no doubt that the individual employee is always the weaker party in every employeris formation It through the relationship. of trade unions that the above injunction of employee the Prophet can be realised and the interest of employees adequately protected within modem economies. Within the modem economic practices that operate in modem Muslim States inconsistent be it with the Islamic injunction of fair-dealing not to allow the today, will formation of trade unions to protect the interest of employees as provided under Article 22.
37 SeeArticle 8 of the ICESCR in the next chapter.
374See Joseph, Schultz and Castan (2000) supra, note 23 above, pp. 432-441. 375Karnali, M. H., (1997) supra, note 328 above, p. 73ff.
171
THE RIGHT
TO MARRY
AND FOUND A FAMILY
Article 23 1.
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2.
The right of men and women of marriageable age to marry and to found a family shall be recognized.
3.
No marriage shall be entered into without the free and full consent of the intending spouses.
4.
States Parties to the present Covenant shall take appropriate steps to ensure equality of during its to marriage as marriage, and at spouses of responsibilities rights and dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.
Article 23 of the ICCPR is unique in the sense that it provides for an institutional fundamental institution "the family It the and as natural group unit of guarantee. recognises " State. It by "right is "entitled the the to that also recognises and society protection society" found family", to to marry and a and makes of men and women of marriageable age in intending Neither full free "the the the spouses" every marriage. of consent and mandatory
has family. however The HRC definition ICESCR the statedthat: of ICCPR nor gives a "In giving effect to recognition of the family in the context of article 23, it is important to accept the concept of the various forms of family, including unmarried couples and their children and single parents and their children and to ensure the i376 in these treatment contexts... of women equal
The recognition and importance of the family institution under Islamic law can not be founding family is legitimate However, the means of a under marriage over emphasised. in (2), (3) Article (1), 23 full consonance In law. that and of are Islamic regard paragraphs important family in Islamic law. fact law, they Islamic principles of re-echo with There are however some apparent differences between the thresholds of Islamic law and international human rights law regarding equality of rights and responsibilities of spouses during marriage and at its dissolution under Article 23(4). Similar provision is found in Article
16 of the Convention on the Elimination
of all forms of Discrimination
Against
Women377 During the discussions of the draft Women's Convention in the Third Committee Assembly, Muslim Article 16 General to countries raised some objections with the respect of law Islamic its on rights and responsibilities of spouses of principles conformity with and 376General Comment 28, Par. 27. The maters addressed here are further considered under family rights in Article 10 of ICESCR in the next Chapter.
377supra, note 60 above.
172
during marriage and at its dissolution. They succeeded in achieving only a few amendments 378 draft. In consequence, most Muslim countries that ratified the Women's to the original Convention entered a reservation to Discrimination
Article 16.379 The Committee on the Elimination of
Against Women, believing that it would be useful for it to have material on
the subject, requested the UN in its reports of 1987 and 1988 to "promote or undertake 380 laws however The Islamic the and customs". request was women under status of studies on Council (ECOSOC) Social both Economic down the the and and the turned meetings of at 381 States. According to Lijnzaad by UN General Assembly due to objections some Muslim this has so far made it difficult to "reconcile the cause of women's rights with Islamic 382 We will therefore elaborately examine here those specific areas of differences with law". Islamic law. to of spouses under and responsibilities equality of rights regard The first important issue in this regard is the concept of superiority of the male over the female in Islamic law. `Abd al `Ati has observed that almost all writers, Oriental and Occidental, classical and modern, have variously interpreted the following Qur'anic verses to in law. (wives) Islamic (husbands) the women over of men superiority mean "... And women shall have rights similar to the rights againstthem, according to what is equitable;but men have a degreeabove them... ""' (emphasisadded) "Men are the protectors and maintainers of women because God has given the one from because ""' them their they than the support means... other, and more strength (emphasis added)
Ibn
Qudamah in
his highly
esteemed legal
treatise, al-Mugni,
indicated
the
husband's but to the two that the on of genders went state rights were complementary role because "men have degree God He that the them". than wife's says a above also greater in which the Prophet Muhammad is reported to have said that if it Tradition to a referred have been being before for human lawful to to wives would another, ordered prostrate a were 378See UN Doc. A/C. 3/34. SR., pp. 70-73. See also Khaliq, U., "Beyond the Veil?: An Analysis of the Provisions of the Women's Convention and the Law as Stipulated in Sharl'ah", (1995) 2 The Buffalo Journal of International Law, p. 1. at 29. 379ForTexts of Reservations See e.g. Lijnzaad, L., Reservations to UN-Human Rights Treaties: Rath and Ruin? (1995) pp. 320-322. See also Cook, R. J., "Reservations to the Convention on the Elimination of All forms of Discrimination Against Women" (1990) 30 Yale Journal of International Law, p. 644 at 687-706. See also UN Human Rights Treaty Website at: http"//www. unhchr. chlhtml/menu3/b/elcedaw. htm [17/2/2001]. 380See (1987) Report of the Committee on the Elimination of Discrimination Against Women Sixth Session, UN Doc. A/42/38 (1987), par. 580, (Decision 4); and (1988) Report of the Committee on the Elimination of Discrimination Against Women, Seventh Session, UN Doc. A/43/38 (1988), Par. 61.
381SeeUN Doc. E/1987/SR.10-SR.14 (1987); UN Doc. A/C. 3/42/SR.22 (1987); UN Doc.A/C. 3/42/SR.26-SR.28 (1987) and UN Doc. A/C. 3/42/SR.30 (1987). See also Byrnes, A. C., "The "Other" Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination Against Women" (1989) 14 YaleJournal of International Law, I at 53-55. 382SeeLijnzaad, L.,(1995) supra, note 379 above,p.320. 393Q 2: 228.
173
385 This has often been taken husbands due husbands to the over wives. to of rights prostrate law. Islamic husband the the the under over wife of superiority to mean a confirmation of Thus the French writer Gaudefroy-Demombynes has asserted that Islamic law and customs "give the husband absolute authority over his wife and children.... The husband is superior to 386 Qur'an". This idea of superiority of ' his wife: `men having a degree above them, says the in have "degree" from to is inferred that the are stated above women men men over women Qur'an 2: 228. But what is meant by this "degree"? One observes that both classical and "degree". An differ Qur'an this the interpreters the of example meaning on of contemporary instance, in is found for English "degree" the in interpretations the of of the contrast interpretations of Yusuf Ali which says "... men have a degree (Of advantage) over themi387 388 degree (of have "... and that of Muhsin Khan which says a responsibility) over them". men by "of Advantage" "Of the respective the and responsibility" The parenthesising of phrases Qur'an but the understanding the indicate those that of statements interpreters are not express interpretations `Ati interpreters. `Abd therefore that the by the pointed out al of the content dispositions the better or of "probably of certain psychological a reflection as understood are least low has been the that the on surface", and whole, at on which women, of actual status have to "idea power over them without reciprocity or and that women are superior men the letter the the from to the well as of' spirit as alien apparently sources qualifications stemmed 389 Qur'anic verses. It is noteworthy that both Qur'an 2: 228 and Qur'an 4: 34 revolve around the family institution. Rather than advocating the superiority of one gender above the other, the verses differentiation in Islamic the the be appreciation of role within of context understood must the family. From sociological perspectives, authority and power are necessary elements of is Bernard Allport family The not an exception. quoting structure any group structure. human "run t. through the that e. c., all and power, status, authority, concepts of pointed out animal relationships",
and that "the social psychologist sees ascendance-submission or
; 84Q 4:34. 385SeeIbn Qudämah,M. A., al-Mugni (Arabic) (1981) Vol. 7, p.223. 386Gaudefroy-Demombynes,M., Muslim Institutions, Trans. MacGregor, J.P., (1968) p. 132Seealso Honarver, N., "Behind Religion, 355 (1988) 6 Journal Law in Societies" Islamic Rights Women's p. at 384-385. Veil: of and The 387See Ali, A. Y., The Meaning of The Holy Qur'än (New Edition with Revised Translation and Commentary) (1992) p. 92. difference Yusuf Ali "The in between 255 footnote the In to the translation that states economic position (emphasis added). liabilities a little greater than the woman's. Q. 4: 34 refers to the duty of the man to and the rights man's sexes makes in between difference Subject to this, the terms to nature sexes. a certain sexes are on of equality the and woman, maintain is " to the in entitled special sex protection. weaker law, matters in certain and 388See Muhsin Khan, M., and Taqi-ud-Din Al-Hilali, M., Interpretations of the Meanings of the Noble Qur An in English Language: A Summarized Version ofAt-Tabari, Al-Qurtubi and Ibn Kathir with Comments from Sahih Al-Bukhari (1996)
57. (emphasisadded). 89`Abd al `Ati, H., (1977), supra, note 64 abovep178-182.
174
dominance-compliance
390 in , This contact with each other. wherever two persons are
in in human leadership to Islam every group activity ensure cohesion required explains why involving in instance For two worship or more people, one of them acts of relationships. Also lead is two travel the together, the when or more people others. will qualified more who Prophet instructed that one of them must be selected as leader of the group. In all these it is being is leader the to to the others, only ensure as superior not considered situations family life therefore in To there the the the of arises need success enhance group. cohesion husband family The identify the differentiate structure. would necessarily roles within to and be more influential in certain roles while the wife would be in others. Zeldich has pointed out by husband-father, instrumental the in the roles are played and protective that most societies 391 is in It the that the the exceptional roles. cases expressive wifeplays wife-mother while family That the the the structure. perhaps within explains role protective assumes mother degree (of responsibility) that men have above women and which is consistent with the that says: verse second "Men are the protectors and maintainers of women because God has given the one from because "392 they them their than the support means... other, and strength more
The word interpreted here as protectors and maintainers (gawämün) is also sometimes involves in "guardians" that some element of authority on the part of case which translated as is However the husband. protector or maintainer substantially rather of a guardian, role the be It than more consistent therefore to understand would of authority. that of responsibility in Qur'an have 2: 228 degree to "degree" that women above as a are stated of men the is It two that the verses under examination nor any other verse of neither clear responsibility. is It to that Qur'an superior women. also not mentioned men are specifically mentions the directly that men have absolute authority over women. Where the husband/father adequately discharges the degree of responsibility
him, upon some reflective placed
rights will
in family from him Thus the the the to relationship. wife/mother authority ensue reciprocally inferred husbandis best the the of only as a consequence structural the role of at male of father in the family. Authority and leadership is thus not really generalised or attached per se female. It being in family to the to idea the the relates superior specific male the roles to of best for is delegated to the that Islamic teachings. gender suited role within and structure 390See Bernard, J., American Family Behaviour (1942) p.420. 391Zeldich, M., Family, "Marriage and Kinship" in Faris, R. E. L., Handbook of Modern Sociology (1964)p. 680 at 699 and 703.
392Q4: 34.
175
Whether men are the best suited for that role than women is an open question subject to diverse cultural arguments. be Islam institution that family traditions Marriage and the of cannot are very strong does law Islamic for also not promote celibacy and necessities. valid except neglected is Muhammad The Prophet to reported wedlock. outside generally prohibits sexual relations 393 be (Sunnah) his Traditions not neglected. which should that have said marriage was part of Esposito has thus pointed out that: "Islam considers marriage, which is an important safeguard for chastity, to be incumbent on every Muslim man and woman unless they are physically or financially lifei394 lead to conjugal unable
Muslim jurists therefore tend to protect the family institution resolutely and are cautious in accommodating any norms that would tend to disrupt that tradition of Islam. Khan as disintegration family Muslim fear the the of by Badawi about societies of expressed quoted institution in the following words: "Of all the family problems in advanced countries, divorce tops the list. The fact that family divorce has life in in these ruined up end countries the majority of marriages love do for the and care of parents who are still alive, no enjoy children completely, 395 " from their death formerly it parents. which separated children only was whereas
is institution family the the of guaranteeing equality spouses to while The urge protect defeated inter that law. the It Islamic to alia, considerations, such was not peculiar by American Constitution States in US the Amendment the Rights to Equal the ratification of had States America United 2000 December the Also of not ratified the 1982.396 as at Women's
Convention on grounds, inter alia, that the Convention has the potential of
"397 distinctions. "non-invidious gender prohibiting even
Meron has alluded to the wide scope of the Women's Convention with regard to the prohibition
family "religious that inspired the suggested and within norms of religious
for less have family to the significance women's ability relatively which within practices function as full human beings in society might be permitted even though those practices
393Reported by al-Bukhäri. See e.g. al-AsgalänI, Ibn Hajar, Bulugh al-Maram (With English Translations) (1996) p. 342, Hadith 825. 394Esposito, J.L. Women in Muslim Family Law (1982)p. 15. 395See e.g. Badawi, J.A., The Muslim Woman's Dress According to the Qur'an and Sunnah (nd) pp. 13-14. 396See Feinberg, R., The Equal Rights Amendment. An Annotated Bibliography of the Issues 1976-1985 (1986)p. 3. 397See Zearfoss, S., "The Convention for the Elimination of All Forms of Discrimination against Women: Radical, Journal (1991)12 Michigan " Reactionary? of International Law, p. 905. The USA signed the Women's Reasonable, or Convention on 17 July 1980 but is yet to ratify it.
176
impair which women's ability to exercise their perpetuate stereotype roles while practices function instance (for foreclose to outside stereotyped roles a opportunities rights and be home) "398 He the must not allowed. outside submitted women working on prohibition in family by the the to sex-roles structure as required of religious that elimination require teachings could constitute coercion to alter religious practice or belief, contrary to Article 1(2) of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination 399 Of relevance is also the issue of abortion. The Women's Belief. Based on Religion or Convention does not specifically
sanction abortion but a wide interpretation of Article
16(1)(e) of the Women's Convention which provides for the same rights to decide freely on the number and spacing of the couple's children can accommodate the right to abortion had finds is has decides then that that the enough children and she she wife where 400 pregnant. With regard to equality of rights "as to marriage, within marriage and at its dissolution" Article under
23(4) the apparent areas of conflict
with Islamic law are: the right of
for for Muslim the women; right of polyandry right men with no of polygyny conditional book" (i. Christian Jewish "people but the the to e. and women), of of no women marry men "people book" i. female for Muslim the the to of of marry men e. women similar right in inheritance, divorce. female's We the to the right shall now and share religious endogamy; juristic justifications issues together the these views and with examine differences. law the Islamic of and possible reconciliation under
advanced for them
Polygyny in Islamic Law and Equality of Rights as to Marriage The HRC observed in its General Comment 28 that polygamy is incompatible with in Covenant "it be definitely the that and should marriage under abolished equality of rights jurists "40' have Muslim it to exist. and scholars advanced reasons such as continues wherever demographic needs, economic factors, barrenness of the wife, chronic illness of the wife, higher sexual needs of men, e.t. c., in their attempt to justify the conditional permissibility of
398See Meron, T., Human Rights Law-making in the United Nations: a Critique of Instruments and Process (1986) p. 159, 153-160. 62-66 and see pp.
399ibid, pp. 159-60. 40°Seee.g. Meron, (1986) supra, note 398 above,p.72. Seealso the issueof "unwanted pregnancy" and the presumption that the decision is that of the woman addressedat page 124-125above. 401General Comment28, Par. 24. Seealso the Committee's Concluding Observationson Nigeria (1996), UN Doc. Observations Concluding 291; 65; Par. on Libya (1998), UN Doc. CCPR/C/79/Add.101.Par.17; CCPR/C/79/Add. Concluding Observationson Cameroon(1999), UN Doc. CCPR/C/79/Add.116. Par. 10. Seealso CEDAW's General I HRI\GEN\1\Rev. UN Doc. 21, at 90 (1994). Par.14. Recommendation
177
402Most justifications law. in Islamic these of polygyny
may be stiffly contested in the light
barrenness like Problems however day the the of circumstances. wife are quite present of tenacious in the arguments for the justification
of conditional polygyny in Islamic law.
Similar arguments exist also in other cultures. In traditional African society for instance, is is Thus found barren, the the of main purpose marriage. where wife usually procreation the husband is usually inclined towards taking another wife, even though he does not divorce 403 is, is here The barren the the one barren? It his what obvious question of when man wife. is often assumed, albeit wrongly, amongst the local populace in many developing countries that the fault for lack of conception in marriage is always with the wife. Islamic law however impotence, husband lack defects during the as of such of semen or ejaculation recognises intercourse, lack of testicles and amputated sexual organ, all of which constitute grounds on for dissolution the a of the marriage. al-Zaylä'i, the twelfth century may seek wife which Hanafi jurist stated that since these defects defeat the very purpose of marriage i. e., has demand for the to and procreation of children, wife sexual urge a right of a satisfaction 404 The same principle applies and the woman may seek dissolution where the dissolution. be dissolution barren. The for is found then to the woman why question would a right man like her The Islamic jurist, Ibn to male counterpart? medieval polyandry a right not and Qayyim, has responded with a list of socio-legal arguments to this question. The most is lead family that to can polyandry more easily which of and societal perhaps compelling disintegration because both the concepts of legitimacy of offspring and family lineage would be impaired. There would always be a contest of legitimacy between the male spouses each in is is born in the a polyandrous union, which not case a polygynous time a child 405 marriage. In case of a barren woman it is often argued that to take a second wife is better than barren having divorcing the the wife or offspring outside marriage through adulterous either For Muslim such women. exceptional reasons, some other with relations
scholars have
for diseases "Islam that polygamy as a permitted remedy some social argued - under be (because, which without plurality of wives shall prohibited... conditions certain - see below) Islam, since the very beginning, favours monogamy. "406 According to `Abd al Ati,
402Seee.g. Ibn Qayyim, A., Kitäb Akhbär al-Nisä' (Arabic) (1900) Vol. 2, pp.85-87; Doi, A. R., (1984), supra, note 82 (1984) supra, note 16 above,pp.192-193. Y., 146, al-Qaradawi, and p. above, 403See Doi, (1984) ibid, p. 153-154 and footnote 15 thereof. 404See a]-Zaylä'i, Tabyin al-Hagä'iq: Shar Kanz al-Dagä'iq
(Arabic) (1313AH) Vol. 3, p. 25.
4°SIbn Qayyim, A., supra note 402 above.Seealso `Abd al`Ati, (1977), supra, note 64 above,pp.125-126. 406See e.g. El-Bahnassawi, S., (1985) supra, note 58 above, p. 157; and Al-Zuhayli, 9., p. 6670.
W., (1997) supra, note 77 above, Vol.
178
blessing for be for the other, viewed entirely as a one sex not and a curse should polygyny 407 difficult, "crisis" legitimate to "as but some alternative applicable situations". a The permissibility of polygyny in Islamic law is based on Qur'an 4: 3 which provides that: "... marry women of your choice, two three, or four; but if you fear that you shall not be able to deal justly (with them) then only one, or (a captive) that your right hands from doing injustice". is That to prevent you nearer possess.
Men are thus allowed to have a maximum of four wives at a time. Both classical and jurists justly, Muslim that the to treat agree ability generally co-wives as stated contemporary 408 is Some of Qur'anic to this in the permissibility of polygyny. verse above, a prerequisite the classical jurists such as Imam al-Shäfi`i, the eponym of the Shäfi'i school of Islamic jurisprudence, did not consider the requirement for doing justice between co-wives as an but "moral binding husband's legal the only as a exhortation requirement on essential 409 Many contemporary scholars and jurists however hold that the mere conscience". justly between being deal to the able co-wives removes of not permissibility of apprehension They Qur'an to the 4: 3 the refer concluding monogamy. sentence of and advocates polygyny is (monogamy) from "... That doing injustice", to nearer prevent you says: and above, which is is The the that rule while polygyny only an exception. monogamy view that the conclude is legal justly between had been deal further to to prerequisite co-wives a polygyny ability Qur'an 4: 129, "You by taken together and with scholars which says other will never argued be able to do perfect justice between wives even if it is your ardent desire... ", to reach a is law. Islamic According to that view the that actually prohibited under polygyny conclusion Qur'an itself confirms the inability of men to fulfil that prerequisite of dealing justly with cowives. jurist,
The pioneer advocate of that interpretation was the nineteenth century Egyptian Muhammad Abduh, who, at the close of that century, argued that the abuse of
its injustice he to women and advocated proscription through a combined polygyny created interpretation of those two Qur `änic verses. However, that view was and is still strongly interpretation Muslim by the traditional that permits polygyny who support scholars opposed 410 is between justice Despite in that the trend that the Muslim ensured co-wives provided least, favours, if today at a restricted polygyny generally not outright monogamy, most world 407`Abd al`At?, (1977), supra, note 64 above,p. 126. 408Seee.g. Tanzil-ur-Rahman,A Codeof Muslim Personal Law (1978), Vol. 1,pp.92-101; and Al-Zuhayli, W., (1997) 6669-6670. 9., Vol. 77above, pp. supra, note SeeCoulson, N.J. History of Islamic Law (1964)p.208.
179
Muslim scholars and jurists would hesitate to declare its outright prohibition for the fear of its Qur'anic the permissibility. of sanctity violating The combined interpretation of Qur'an 4: 3 and Qur'an
4: 129 as advocated by
Muhammad Abduh was subsequently relied upon by some Muslim States to either restrict or Code Status411, Tunisian Personal Tunisia In 1956 the of which enacted abrogate polygyny. provided that: "Polygamy is forbidden. Any person who, having entered into a bond of marriage, is liable dissolution before to the the one, of preceding marriage contracts another "' fine... ". imprisonment to a or one year's
law it has been been Islamic has controversial under and approach 413 because has been Tunisian Qur'an. This the the so particularly criticised as contravening imprisonment, despite fact the that one year's of with a sentence polygyny code criminalised it in jurisprudence Islamic of exceptional consider permissible circumstances. schools some imprisonment in 1959 followed the specified had and a and prohibitory approach Iraq also That prohibitory
fine for any violator. Due to strong opposition and non-compliance by Muslims who in law 1963 Qur`anic the the it to revised and was article provisions, contrary as considered however despite Tunisian The code was retained similar was removed. polygamy prohibiting 414Syria had also in 1953 enacted the Syrian Code of Personal Status restricting opposition the right to polygyny.
Article 17 of the Syrian Code, which remains operative, provided that:
"The judge is empowered to refuse permission to a married man to marry another 19415 he is in it is if to two that a position support wives not established woman .
it is this approach, could almost serve as a procedural a restrictive Although substantively discretion determining do door the the to to the of ability since polygyny means of closing
116 judiciary. husband from the the is and placed with justice taken away In many of the Muslim societies where polygyny is practised, the prerequisite of being is by between The justice do given any seldom consideration men. co-wives to able 410Seee.g. Doi, (1984), supra, note 82 above,pp.149-154;and Al-Zuhayli, W., (1997) supra, note 77 above, Vol. 9., m. 6670Law of 13/8/1956(as amended). 412ibid. Art. 18. 413SeeQadri, A. A., (1986) supra, note 22 above,p.368; and Doi, A. R.,(1984), supra, note 82 above,p. 149-154.
414See Khadduri, M., "Marriage in Islamic Law: The Modernist Viewpoints" (1978) 26 American Journal of Comparative Law, p. 213 at 216. ais See also the Moroccan Code of Personal Status of 1958 and the Pakistan Family Law Ordinance of 1961. See also Countries, Islamic History, Texts and Analysis (2"d Ed. 1995) pp. 246 Law in Personal Statutes T., of Mahmood, -248. 416See e.g. Al-Zuhayli, W., (1997) supra, note 77 above, Vol. 9, p. 6674 for a critique of this approach.
180
permissibility
of polygyny is often abused in a way that actually works against the family
institution itself. Quoting Ibn al-Qayyim,
`Abd al-'Ati,
has observed that "polygamy in
Islam is no more and no less than that of a permissible act, (which) like any other act lawful in principle, it becomes forbidden if it involves unlawful
things or leads to unlawful
is injustice. ""' It such as arguable on the above grounds that the permissibility consequences 418 for law Islamic is be It under reasons of welfare. controlled public noteworthy could however that most discussants of women's rights proceed from the premise that there is only inequality is, by "equalising down" the that abuse and of polygyny, of redressing way one through a direct prohibition to strip men of that right. Under Islamic law this will continue to be controversial in view of its Qur'anic permissibility. Are there other means through which Muslim countries may therefore address the problem of polygyny within acceptable limits of Islamic law to remove the disadvantage against women and also satisfy their obligations human law? One international has been fully that rights approach not utilised and under is "equalising inequality. the realistic prove up" approach of redressing could which There are normally
two alternative routes to redress situations of inequality
or
disadvantage; - either by raising the rights of victims of the inequality, i. e. "equalising up" or 419 i. "equalising down". Will situations where by lowering the rights of those advantaged, e. have to a right polyandry similar to that of men to polygyny not satisfy the women Although to that of rights of equality could satisfy the requirements marriage? requirements because nothing prohibits polyandry in international law, practical considerations indicate 420 Islamic to that most societies would not endorse such alternative as a solution polygyny. law actually prohibits polyandry by ijmä ` (legal consensus), so "equalising up" in that law, is legally Islamic is is that possible under not and not what suggested here manner law Islamic for Rather, there "equalising that provisions within are allow a sort of up" either. by legally activating the rights of women to "suspended repudiation" (ta `läq al-taläq) and/or "delegated repudiation" (tafwId al-taldq) of marriage. The legal activation of such rights will disadvantage but the lead to a and abuse of redress polygyny against women also only not
417`Abd al`Ati, (1977), supra, note 64 above,p. 119. He madereferenceto Ibn al-Qayyim's, Kitäb Akhbär al-Nisd (1900) Ibn Qayyim "cites ninety-nine casesin confirmation of this principle and makes 402 that observed and above, note supra Qur'an and Sunnah,and the rulings of leadingjurists. " Seeendnoie44 thereof. the to reference extensive 418However, for the doctrine of public welfare (maslahah)to apply the abusethat makessuch control necessaryneed to be sufficiently established. 419See e.g. Harris, D. J., and Joseph, S., (eds.) The International Law (1995)p. 594.
Covenant on Civil and Political Rights and United Kingdom
420Seee g. Dietmar Pauger v. Austria, Communication415/1990, Seealso Joseph,Schultz and Castan(2000) supra, . 570. p. above, note23
181
international law between Islamic in this harmonisation the and area conflict of smooth human rights law. How can that be achieved? There is consensus in Islamic law that polygyny can neither be imposed upon a woman law, Shi `ah, Islamic Also the the it is except of all schools only a permissible act. or a man, (ta 7iq "delegated "suspended doctrines and al-taläq) the repudiation" of endorse repudiation"
(tafwid al-taläq). 421By the first doctrine of "suspended repudiation",
the
if he does becomes the that time the repudiated marriage husband stipulates at of marriage doctrine By the taking to the wife. second another wife, such as certain things unfavourable during husband, by is the the the marriage contract "delegated vested, wife repudiation" of her, to herself divorce there unfavourable such as to circumstances arise should with the right 422 law has Islamic The to husband taking under make a right wife wife. another the for for is Muslim It in therefore the reasons countries, possible marriage contract. stipulations informed during be these that to of specifically rights women shall enact of public welfare, 423 it State discretion The have to the thus utilise or not. either and the marriage contract, "equalised their legally in the have of women and up" that rights activated way would formerly available but suppressed rights against the rights of men to polygyny, and thus give be Supplementary to this, in the should also adequately women matter. them a choice importance in law. The Muslim them to of educating the such right existence of educated of is in Coulson in law, Islamic the that: their observation of manifested rights about women "There has perhaps been a natural tendency in recent years to exaggerate the picture law. Miserable labouring traditional the the Muslim shackles of under wives of though the lot of Muslim wives may have been in practice, this was often not so law itself direct the the the terms the as responsibility of society. of of result much The customary seclusion of women, and especially the lack of educational facilities, left them ignorant of their rights and unable to insist upon the proper use of "424 for law had their the protection. provided machinery which
Any disadvantage of polygyny could thus be redressed by women utilising an alternative legal right available to them in Islamic law, while at the same time the liberty of women who 421See e.g. Al-Zuhayli, W., (1997) supra, note 77 above, Vol. 9, p. 6935-6941; and `Abd al'Ati, (1977), supra, note 64 husband to delegate his right of divorce to his wife, by (Twelvers) the the Shi'ah The recognise right of 119. above, p. differ is l. do Tawk? Although This the technically, this can also achieve similar to her called rules so. agent an as appointing To in Morocco Mir-Hosseini, Z., "The Delegated Right Divorce: Law See Practice Ta'lig. Taf and e. g. vid and results with L, and Kapoor, H., (eds. ) Talag-i-Tafwid: The Muslim Woman's Contractual Access to Divorce (1996) Carroll, in Iran", and pp. 121-133. °2 See Ibn Qudämah, M. A., al-Mugni (Arabic) (1981) Vol. 7, p. 13; `Abd al'Ati, (1977), ibid, pp. 1 19-120 and Coulson, N. J., (1964) supra, note 409 above, p. 207. 423Similar rules can be found in the Jordan, Morocco and Egypt Personal Status Laws respectively, allowing the wife to her husband take to sue for divorce if he does. See Generally Carroll, L, wife and another entitles not the shall that stipulate 421 above. (1996) H., note Kapoor, supra, and
424Coulson, N.J., (1964) supra, note 409 above,p.207.
182
demand, be be like to so would still exceptional circumstances when co-wives, may still by Neither in interfering law the their the prohibitory approach. way guaranteed without imposition be then upon men and women respectively, an monogamy nor polygyny would but would actually be put in its correct perspective under Islamic law as a matter of choice. This would not contravene the Shari `ah in any way and should also indirectly satisfy the in focus This States the Muslim to the rights marriage. way ensure equality of obligations of human be law be human to international on rights and not on specifically seen will rights of basis thus teachings the and promote a complementary se, per religious of questioning 425 human rights problems. approach to solving
Female Endogamy in Islamic Law and Equality of Rights as to Marriage Based on Qur'an 2: 221 and Qur'an 60: 10 there is consensus among both Sunni and Shi'ah jurists that a Muslim woman is prohibited under Islamic law from marrying any non426 "women Muslim 5 Qur'an 5: to Conversely, men marry of the people Muslim man. permits international' human law In Jewish (i. Christian this Book" rights women). will and the e. of
in has HRC The that regard that: discriminatory observed be considered againstwomen. "... the right to choose one's spouse may be restricted by laws or practices that prevent the marriage of a woman of a particular religion with a man who professes information laws States different these should provide on religion. a or no religion s427 laws the to taken the and abolish practices... measures and on
and practices
Muslim jurists have also advanced some justifications
for this provision under Islamic
428 The foremost being that, under Islamic law a Muslim man who marries a Christian or law honour both Christianity has to and respect religious obligation Jewish woman a
and
in jeopardy beliefs through the Thus the are and rights not Judaism. woman's religious her Christian be free because to practice and religion as a or maintain she would marriage, Jew. Conversely, a Christian or Jewish man who marries a Muslim woman is not under such Muslim Christian faith, his to a woman allowing marry a so or a own obligation within Jewish man may expose her religious beliefs and rights to jeopardy. This justification is beliefs Muslim the to hinged protect religious and on wanting rights of mainly therefore has that: thus argued al-Qaradawi women. 425See Levitt, M. A., "The Taliban, Islam and Women's Rights in the Muslim World" (1998) 22 The Fletcher Forum, p. 113 at 115. 426See e.g. Nasir, J.J., The Islamic Law of Personal Status (1990) 2°d Ed., pp. 69-70. 427General Comment 28, Par. 24.
183
".. while Islam guarantees freedom of belief and practice to the Christian or Jewish her faith, her to Muslim, own other religions, rights according safeguarding wife of a different faith do Christianity, the Judaism wife of a not guarantee and such as freedom of belief and practice, nor do they safeguard her rights. Since this is the daughters by future its into how Islam them the take of giving on chances can case, the hands of people who neither honor their religion nor are concerned to protect their rights? " 429
On grounds of the guarantee of freedom of thought, conscience and religion under international human rights law, it is arguable that other religions, such as Judaism and Christianity would now also be under an international obligation to guarantee the freedom of belief and religion to a Muslim wife and thus safeguarding her rights according to her own faith.
If so, will this remove the prohibition of Muslim women from marrying men of the
"people of the book" (i. e.. Christians and Jews)? 'Abd al `Ati, has contended that the honour Christian faith his is Jewish Muslim to the the that of or counterpart must give and reverence is "reciprocity" integral faith Islamic the the integral same not an part of while part of an honour and reverence is a matter faith. The Jewish Christian unreserved the required or either is in Muslim imposed law. For be by the the faith that same reason male prohibited can not of Islamic law from marrying an idolatress because of the psychological factors involved. Faith, between it God; be "is `Ati, `Abd the man and relationship cannot most private al concluded imposed or conferred. Nor is it the question of discrimination between men and women in Islam"430 Can this then be categorised as "differentiation"
for the purpose of protecting the
discrimination?. instead We have Muslim then to of will women also of rights religious disadvantages do Love to transcend the women. any prohibition causes whether consider law may therefore, on some occasions, Islamic boundaries, the prohibition under religious deny a Muslim woman from marrying a man she loves, where he happens to be a non"Of course, love may be invoked as omnipotent, ... is ideological, love But or social. perhaps one of emotional, all problems, capable of solving is it if as sometimes claimed, social omnipotent were so and words; the most abused
Muslim. According to `Abd al `Ati,
431 life less " human The sociobe much interaction would problematic. much simpler and be for broad doubt and can continued, and against, ad infinitum. no legal arguments are quite Naturally,
every religion,
ideology or cult treasures its adherents and will have rules that
least minimise door to the or at close
deflections.
Such rules may often be contrary
freedom thought, to conscience and religion of right
under international
to the
human rights law.
429Seee.g. `Abdal `Ati, H., (1977)supra,note64 above,pp.140-145. 429Seee.g. al-Qaradawi,Y., (1984) supra, note 16 above,p. 184-186. 430See`Abd al `Ati, H., (1977) supra, note 64 above,p143.
184
The prohibition of Muslim women from marrying non-Muslim men thus seem to be one of the areas where achieving
complete equality
is difficult
between Islamic
law and
international human rights law for the reason stated by al-Qaradawi above. No non-secular Muslim State has enacted any law to abrogate that prohibition of Islamic law. Nasir, has thus observed that: "Under the Sharia and all modem Islamic laws, both for the Sunni and Shia sects, a marriage of a Muslim woman to a non-Muslim man is null and void, even if it is laws to the according of any given non-Muslim state. For such a solemnized validly marriage to be valid the man must have converted to Islam at the time of the contract". "'
However, the juristic view of some contemporary Muslim jurists is that since Muslim women from Muslim the marrying non-Muslim men, completely men would also be are prohibited temporarily prohibited from marrying women of the "people of the book" in a situation is high Muslim there of a apprehension number of women remaining unmarried, until where 433This is based is on the doctrine of public welfare (maslahah) under the situation remedied. Islamic law.
Female's Share in Islamic Inheritance and Equality of Rights in Marriage While advocates of Islamic law contend that the "Islamic inheritance scheme contains detailed known to the world"a3a the comprehensive and systems of succession most of one the female's share in the Islamic law of inheritance is viewed under international human inconsistent being According law the to the with principles of as equality of women. rights HRC, "Women should have equal inheritance rights to those of men when the dissolution of 435 by death is Basically, the the of one spouses". caused of under Islam law the marriage double female heir. is This based heir the the Qur'anic the share of receives on male that: states which provision "God
(thus)
directs
you as regards your portion equal to that of two females... "436
children's
(inheritance):
to the male,
a
431ibid, p. 142. 432Nasir, J.J., (1990) supra, note 426 above, p. 84 also pp. 69-70. 433See e.g. al-Qaradawi, Y., (1984) supra, note 16 above, p. 184. 434See Chaudry, Z., (1997) supra, note 58 above, p. 511 at 527. 435General Comment 28, Par. 26. 436Q 4: 11.
185
This rule of double share of the male does not however apply in all cases under Islamic law. 37 There are some instances where the female gets the same share of inheritance as the father (a For mother gets equal share a and sixth each) when they survive and example male. 438 in deceased the same capacity as parents; inherit their the uterine sister gets equal son 439 her brother; inheritors (in the the same capacity) with uterine and where sole are a share husband and a full sister of the deceased, the husband gets one-half and the full sister of the deceased equally gets one-half. There are also instances where the female could receive 440 The female will also receive the entire estate if she inherits double the share of the male. 41 This contradicts any emphatic allegation of unqualified discrimination on grounds alone. inheritance. in Islamic Historically, the scheme of sex of
Islamic law was the first legal
in fixed inheritance to women a portion either as a mother, wife, daughter or grant system in to them time was not when such a right available any civilisation or under any a at sister legal system. This was on the basis of the Qur'anic verse which provided that: "From what is left by parents and those nearest related, there is a share for men and a share for women, whether the property be small or large -a determinate share.11442
Muslim scholars contend that Islamic law must actually be seen as having removed the female in discrimination that the to was subjected every society which had pre-Islamic denied her of any inheritance alongside her male counterpart. The fact that there are instances in female the same capacity with the male, and can also obtain the equal obtains share when in instances, basic double the that for than the higher shows male some rule of share share a indication is of superiority of the male above the female nor discrimination an not the male justifications Badawi for follows: the the summarises sex. of rule as on grounds "The variation in inheritance rights is only consistent with the variations in financial Islamic Law. Man in Islam is to the man and of woman according responsibilities fully responsible for the maintenance of his wife, his children, and in some cases of his needy relatives, especially the females. This responsibility is neither waived nor his because her because of wife's wealth or of access to any personal income reduced gained from work, rent, profit, or any other legal means. Woman, on the other hand, is far more secure financially and is far less burdened her Her before on possessions. possessions any claims marriage do not transfer with 437Seegenerally Chaudry,Z., (1997) supra, note 58 above. 4311 Q 4: 11. 439Q 4: 12. °40An instance is where the inheritors are a husband, one daughter and one full brother. In that case, the husband gets one daughter full brother the the only child the as an gets one-half and estate, of gets the remaining one-quarter. See quarter Chaudry, Z., (1997) supra, note 58 above, 535-536. °41See e.g. Nasir, J.J. (1990) supra, note 426 above, p. 253. 442Q 4: 7.
186
to her husband. She has no obligation to spend on her family out of such properties is 'entitled her She income to "Mahr" (Dowry) which she marriage. after or out of takes from her husband at the time of marriage. If she is divorced she may get an alimony from her ex-husband. An examination of the inheritance law within the overall framework of the Islamic Law reveals not only justice but also an abundance of compassion for woman. "443
Thus while the share of the male and the female, where the double share applies, appears in Muslim that the the contend shares morally scholars are equitable unequal, arithmetically 444 financial This final analysis, considering the varied responsibilities of each gender. in inheritance Islamic indicates the the that variation scheme takes the overall argument family structure under Islamic law into consideration.
From that perspective, will counter
has family family is that the that the already changed, structure nuclear now arguments dominant even in many Muslim countries, that many women for one reason or the other are bread-winners of the family, coupled with feminist calls for the empowerment of women and the promotion of their non-dependence on men, make any difference? This relates to the is important here It financial to that the note of women. and cultural rights social economic, family law Islamic the structure of are without prejudice to the of men within responsibilities 445 While it is reasonable and appreciative that a independence financial of the women. financially buoyant wife can assist with the financial responsibilities of the family, Islamic law does not impose this responsibility on her. Such responsibility is legally placed on the husband and where he fails to discharge it without
necessity, the man becomes an
irresponsible husband under Islamic law, against whom the wife has a right of dissolution on 446 lack of maintenance. grounds of In addressing any problem of inheritance, succession rules can hardly be imposed upon intend follow does is There to such not rules. who always a way of any person legally imposition. is The approved most of which such gifting away the any circumventing lifetime. during to one's whomever one pleases estate
It is the belief in the divine basis of
inheritance keeps Islamic Muslims attached to it. If the Islamic `ah that Shari the rules on law of succession is considered generally, it would be observed that the fixed-shares actually for heirs be disinherited impossible for it to A completely some certain reason. any make displacement of Islamic law will therefore actually expose those secured heirs, which include in Islam(1971)8Al-Ittihad,No.2, September, 33. 443 Badawi,J.,TheStatus of Woman 64 268.
4" See e.g. `Abd al `Ati, (1977) supra, note
above, p.
d45Seeibid, pp.269-270.Seealso Chaudhry,Z., (1997) supra, note 58 above,544-545.
187
dispositions disinherited being through testamentary completely women, to the possibility of 447 be difficult It disadvantage. to compel any more them may actually greater at a and put individual through secular law to dispose his estate equally and non-discriminatorily among his male and female heirs. People usually prefer to distribute their estate as it pleases them. What Islamic law has successfully established through the fixed-shares is to ensure that does however by That disinherited the testator. not prevent certain close relations are not during their their discretion to from their of estate gift of any part a make testators exercising is inhibah doctrine female) (male the heirs through of which an their lifetime to any of or fixed-shares balance legally law for the the in tilting Islamic of as one built mechanism 448 lifetime during one's pleases In 1959 Iraq enacted the Personal Status Act giving equal shares to males and females in in 1963 Shari 'ah its the the Due to and was abrogated provision unpopularity all cases. 449 Islamic inheritance rules continue to apply to Muslims within the provisions restored. 450 its initial During States the Muslim law consideration of report of most codes personal before the Committee on the Rights of the Child, the Saudi Arabian representative, Mr. Aldirectly from it Koran, law inheritance Saudi taken the "because that was was Nasser, stated interpretation for hence the God, be there or room adoption the to was no of word considered be "in that could much greater some cases, a woman's entitlement of another system" and 451 than that of a man".
Dissolution of Marriage in Islamic Law and Equality Rights of Women In its General Comment 28, the HRC observed that in the dissolution of marriages be for divorce "grounds the same for men and that annulment should and States must ensure 452
women". Marriage may be dissolved under Islamic law either through Unilateral Repudiation (taldq), Discharge at wife's request (khul) Dissolution by Mutual Agreement (mubara `ah), Order (faskh). Unilateral Repudiation (taldq) is a right of the Judicial through Dissolution or °46See e.g. Tanzil-ur-Rahman, (1978) supra, note 408 above, Vol. 1., pp. 641-652. Note the observation of the HRC that: in husband implies that during equally participate responsibility and authority within the and wife should marriage "Equality family". General Comment 28, Par. 25. 447See e.g the Nigerian case of Adesubokan v Yinusa (1971) Northern Nigerian Law Reports, 77.
d48Seee.g. Powers,D. S., "The Islamic InheritanceSystem:A Socio-Historical Approach" in Mallat, C., and Connors,J., Islamic Family Law (1990) p. 11 at 19-21and Chaudry,Z.,(1997) supra, note 58 above, p.546 449See Anderson, J.N. D., "Modem Trends in Islam: Legal Reform and Modernisation in the Middle East" (1971) 20 International and Comparative law Quarterly, p. 1 at 11. 450See e.g. Art. 139-179 of the Algerian Family Code (1988). See also Mahmood, T., (1995) supra, note 415 above. 451See Summary Record of the 680 Meeting of CRC: Saudi Arabia, UN Doc. CRC/C/SR. 688 of 24/01/2001, Par. 59. 452General Comment 28, Par. 26.
188
husband while the other three forms (khul , mubara'ah and faskh) are invocable by the wife. Unilateral Repudiation (taläq) is however the simplest method of marriage dissolution and by husband discretion be legally his for any or no reason at the at exercised exclusively can it be in Thus, may morally wrong or even sinful although some circumstances, a husband all. divorce his by divorce legally "I simple such wife a statement as you". could
Conversely,
the wife can dissolve the marriage through either a Discharge (khul ), Mutual Agreement (mubära `ah) with the husband's consent or through a Judicial Order (faskh) on grounds of legal circumstances only. certain
According to Jeffery therefore, "The Qur'an grants man
justification divorce demands him liberty of and of no complete
for divorcing his wife. Thus
he can divorce her at his own caprice, but no such facility exists for her. "4s3While it may be a have dissolution that to state men exclusive an right of marriage under Islamic misconception law, it will also be misleading to contend that men and women have "equal" or the "same" divorce Islamic law. Men have in the under certainly an advantage of over women rights dissolution. is This fact it is men to the that marriage most probably of connected procedure dowry the and are also expected to be able to act propose marriages and pay ordinarily who in difficulties the marriage relationship. when arise more resolutely Although
the Qur'anic
moral admonitions
verses permitting
marriage dissolution
for husbands to safeguard their wives'
Muhammad Prophet the and of all lawful
begin and end with strong
454 in divorce, the welfare matter of
had also declared that "In the sight of God, divorce is the most
the right of Unilateral Repudiation (taläq) had been yet , ash from far back decade Islam by Furthermore, the as men as second of even though abused
hateful
divorced
women
things"455
are free to remarry
under Islamic
law, men in many Muslim
countries
divorced it They taboo to marry as a women. are thus often subjected to misery and consider destitution.
On the other hand even in the exercise of the right to Discharge (khul)
the husband may, in bad faith, also withhold her keep under retention. and
grounds
of dissolution
consent and thus continue to punish the woman
57 Thus the woman will
dissolution Order Judicial of a seeking
fall outside the traditional
ordained
rather
be left only with the alternative
of
(faskh) which she may also not be able to obtain if her
Coulson by this above458, was certainly observed to be applied,
by a wife,
legal limits
for granting
not the spirit by which
it is the men who have often
failed
such order. As Islamic
law was
to meet the moral
453Jeffery,A., "TheFamilyin Islam"in Anshen,R.N., (ed.) TheFamily:Its FutureandDestiny.(1949)p.39at 60. as°Q 2:229-232.
455Reported By Abü Däwüd. See e.g. Karim, F., (1994) supra, note 197 above, Vol. 2, p. 688, Hadith No. 137. 456See `Abd al `Ati, H., (1977) supra, note 64 above, p. 220-221. 457It is however morally wrong and very sinful to do so in Islam. 459See note 424 above and text thereto.
189
in their the Islam to exercise of procedural and prudence piety respect with expectation of is It dissolution. that the this in abuse of procedural advantage evidenced marriage advantage by men in marriage dissolution had in fact been a matter of concern as early as the seventh legislated its Caliph, Second ibn Umar the during the who against al-Khatäb, rule of century 459 it in fourteenth the the Taimiyyah Ibn by century, and problem addressed also men. abuse for is There therefore to Muslim today. in ground argue reasonable societies many persists in dissolution the the aspect of marriage to procedural moral content with combine the need
Islamic law. Some Muslim States already have sections in their Personal Status Laws that modify, in "' dissolution law. Islamic The traditional the under most of marriage rules a variety of ways, divorce his judicially husband's to through the wife extra right prohibit radical modifications Unilateral Repudiation (taläq). For example Article 30 of the Tunisian Code of Personal 46' is legal law This "Divorce that (1956) of without effect". a court Status outside provides "If fear breach Qur'anic by that to the verse which provides you a reference was achieved 462 it. is The Court (husband two them two appoint arbiters... placed the and wife), between of in the position of "two arbiters" to ensure a combination of the moral content and procedural footing in the the divorce the thus on same procedural the couple placing and aspect of dissolution of marriage. In other countries such as Morocco, Syria, Algeria and Iran, the husband to to the the the is to pay compensation wife where order empowered court 463 just In Pakistan Unilateral Repudiation is for (taläq) cause. no Unilateral Repudiation it been days has 90 be husband by the after reported to an effective (taläq) will only 464 during the period. Arbitration Council, which tries to reunite the couple Considering the consensus of Muslim jurists that divorce is recommended only as a last impossible for become it has the to together, the couple remain clearly and when resort Tradition of the Prophet Muhammad that "In the sight of God, divorce is the most hateful of by finding that the advantage enjoyed lawful procedural things"465, a men with coupled all
been divorce has in the the control of marriage often misused, of matter over women 459Seee.g. `Abd at `Ati, 1977)supra, note 64 abovep.221 and Coulson,N. J., (1964) supra, p. 194-195. 460SeeMahmood, T., (2" Ed. 1995)supra note 415 above. 46' Seealso Art. 49 of the Algerian Family Code (1988).
462Q4: 35. This verse however mentions specifically that the arbiters shall be: "one from his (husband's) family and one from her (wife's) family) ". Here the State considered itself best to take over that role through its judiciary on grounds of public interest. 4e3Perhaps as a deterrent for unjustifiable use of the right of Unilateral Repudiation (taldq) by the man. See e.g. Art. 49 of Algerian Family Code (1988) and Art. 117 Syrian Code of Personal Status (1953) (As amended). See also Al-Zuhayli, W., (1997 )supra, note 77 above, Vol. 9, p. 7065-6. "' This is more like a supervisory role over the traditional waiting period under Islamic law after the taläq has been further Chapter 8 below. See pronounced. 465supra.
190
dissolution through judicial control by the State can be as well justified under the doctrine of 466 The doctrine of hisbah could also be (maslahah). relied upon here, so that public welfare the State would be seen as encouraging good and preventing evil by such judicial control whereby marriage dissolution is restricted to dissolution by Judicial Order to facilitate the both legal divorce. Since dissolution the the of moral and content of rules of amalgamation by Judicial Order (faskh) is a method sanctioned already by Islamic law, this will not amount to making any new law but the removal of a procedural advantage which has been generally However Khallaf Unilateral to such abrogation considered of abuse. men's right of subjected Repudiation and vesting dissolution of marriages entirely in the courts as dubious and non467 One disagree (i. could e. welfare maslahah wahmiyyah). with this view of Khallaf, genuine in does direct Qur'anic the that violate or approach not come conflict with any grounds on (taläq). is Repudiation The Unilateral approach consistent with the Prophet's on verse Tradition which states that: "There should be no harming nor should any harm be remedied 468 It hardship harm". from removes genuine women without placing any another with it does hardship block totally on men, not since every avenue to divorce for consequential for justifiable divorce but that they reasons. ensures only men, An alternative approach is through the exercise of the right of stipulation by women during the marriage contract. This is known in Islamic law as khiyär al-taläq meaning the divorce. Under Islamic law, has (of the to traditional the wife) wife a right to stipulate option during the marriage contract that the husband delegates to her, absolutely or conditionally, have Repudiation Unilateral whereby she will a right to invoke it when absolutely the right of does divest husband his This divorce. the Both he and to not of own original right necessary. 469 Fyzee has observed that: "This form of the wife can then exercise the right unilaterally. delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain her freedom without the intervention of any court and is now beginning to be fairly common in India. s470As stated in the case of polygyny above, the same approach could be adopted in the case of divorce whereby the State will make it mandatory under law that the wife shall be informed during the marriage contract, of this right to stipulate. Supplementary to that is the
466See e.g. the reported view of Sheikh al-Qaradawi by Heba Raouf Ezzat on the possibility of the control of the abuse of the power of divorce by men through the doctrine of maslahah, in Lawyers Committee on Human Rights, Islam and Justice (1997) p. 122-3. 467Khallaf, A. W., 'Jim Usülal-Figh (1398AH) p. 86. 468Reported By Ibn Mäjah. See e.g. Ibrahim, E., and Johnson-Davies, D., (Trans. ) Forty Hadith, An-Nawawi's (1985) pp. 106-107, Hadith 32.
9 See e.g. Ibn kbidin, M. A., Radd al-Muhtär (Arabic) (1994) Vol. 2., p.497. 470Fyzee, A.A. A., outlines of MuhammadanLaw (1974) 4`hEd. p. 159. This is still true today. Seegenerally Carroll, L., 421 (1996) Kapoor, above. note supra, and
191
471 legal law. Islamic There this to of and educate women right under awareness create need is nothing under the Shari `ah that prohibits the State from ensuring that women are law, if it is for informed their the rights under especially about removing adequately difficulties from them within society. In fact they have a right to be informed if they are so ignorant to know.
Concluding Observation The above analysis reveal that the questions raised by gender equality and rights are not justifications for do differences that they that to raise socio-legal some and answer so simple international human law law. issues The between Islamic rights and are of great may exist is in faith demonstration importance of required good addressing them and a great socio-legal from both the Islamic law and international human rights perspectives. Only a superficial its interpretation impression law Islamic or a very restrictive of sources gives an of view of total deadlock between Islamic law and international human rights law on the issues of differences But trivial the as well. are not equality. gender
There are certainly issues to be
if be but addressed monologically may not possible which resolved
from either the single
jurisprudence international human the or rights single perspective of secular of perspective hard-line traditional Islamic jurisprudence. There is need for complementary understanding importance human Feminist issues. to the need appreciate the advocates rights of the of family institution to Islamic society and the importance of the female gender to its it be be, have here bear The that to the why must women obvious question may subsistence. brunt for the subsistence of the family institution.
In redressing the disadvantages and
inequalities that has existed against women, it is important not to swing from one extreme to in a manner that may create a conflict of cultures or portray the arguments as an another justifiable institutions discriminations. Islamic The than against non rather against attack jurists in instances differences justifications Muslim be the where of exist must socio-legal faith. Some in Many the of arguments are certainly rebuttable. good others are examined from A them absolute. study of and not really a combined pragmatic and without consensus transcendental perspective will certainly help to argue the unsustainable ones out. While it is true that the male gender enjoys some role-advantage under Islamic law in accordance with institution, family Islamic the such role-advantage is meant for the the structural roles within family. Conversely in-built the there of success are and rights within Islamic law cohesion 471See generally Carroll, L., and Kapoor, (1996) supra, note 421 above, See also Tanzilu-ur-Rahman,
(1978) supra, note
192
that may be activated for the benefit of the female gender whenever there is apprehension of by the male. The debilitating factor is that women are the enjoyed role-advantage abuse of ignorant Islamic law their of rights under and men often callously abuse that generally ignorance.
The Shari ah promotes the normative equality of both sexes and women have rights law have been due ignorance Islamic that the to suppressed over centuries on their within 472 in Muslim However, in recent countries. many part and callousness on the parts of men times due to the challenges of the international human rights movement women in many becoming Muslim legal their the the aware of world are more rights within sources parts of is important It law both Islamic through therefore to take the enlightenment. education and of Islamic law and international human rights law discourses seriously if the inequalities against be is in States It believed Muslim that as more women must redressed. realistically women become aware of Islamic legal sources that support their equal status they will not fail to in inherent it Islamic law. to their Where to their order advantage activate rights within utilise they do, the barriers of discrimination and inequality will definitely be broken.
Protection of Children Article 23(4) of the ICCPR also provides that in case of dissolution of marriage, "provision shall be made for the necessary protection of any children". Islamic law also fully for in the the need necessary protection of any children case of marriage recognises dissolution. Under the rules of hidänah (Child custody) in Islamic family law, there are in for divorce, the protection of children case of rules which essentially reflect elaborate 473 interest best for the the of child consideration
THE RIGHTS
OF THE CHILD
Article 24 1.
2.
Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. Every child shall be registered immediately after birth and shall have a name.
408 aboveVol. ], pp.339-352.
472See generally Bouthaina, S., "The Muted Voices of Women Interpreters" in Afkhami, M., (ed.) Women's Human Rights in the Muslim World (1995) pp. 61-77.
473Seee.g. Qadri, A. A., (1986) supra, note 22 above,pp. 406-409; and Doi, A. R., (1984) supra, note 82 above,p.214.
193
3.
Every child hasthe right to acquire a nationality.
Despite that all the other provisions of the Covenant apply mutatis mutandis to children, Article 24 provides further for the special protection of children due to their vulnerability as 74 Article 24(1) places the responsibility of protecting the child on family, society minors. is be fulfilled between how family, As State. State, this to to the obligation society and and
HRC Committee has observedthat: "Responsibility for guaranteeing children the necessary protection lies with the family, society and the State. Although the Covenant does not indicate how such be it is is to primarily incumbent on the family, which is apportioned, responsibility interpreted broadly to include all persons composing it in the society of the State party concerned, and particularly on the parents, to create conditions to promote the harmonious development of the child's personality and his enjoyment of the rights recognized in the Covenant. However, since it is quite common for the father and mother to be gainfully employed outside the home, reports by States parties should indicate how society, social institutions and the State are discharging their responsibility to assist the family in ensuring the protection of the child. Moreover, in cases where the parents and the family seriously fail in their duties, ill-treat or neglect the child, the State should intervene to restrict parental authority and the child may be from his family when circumstances so require. If the marriage is separated dissolved, steps should be taken, keeping in view the paramount interest of the children, to give them necessary protection and, so far as is possible, to guarantee personal relations with both parents. The Committee considers it useful that reports by States parties should provide information on the special measures of protection adopted to protect children who are abandoned or deprived of their family in develop in conditions that most closely to them to order enable environment resemble those characterizing the family environment. 9A75
Article
24 together with other provisions on children rights guarantees a secure
foundation for the proper development of the child and in that regard the best interest of the a'6 child is always paramount.
Being religious based, Islamic law obviously also recognises the need for special due The Qur'an describes to their nature. children vulnerable of children as the protection "comfort of our eyes"477 and there are many verses of the Qur'an and Traditions of the Prophet that remind parents and society about their responsibility
to children. Islam
born innocent be that therefore are children and should not made part of the emphasises conflicts and viciousness of adult society.
The right of the child to have a good name is
474SeeGeneralComment 17, Par.I. 475GeneralComment 17, Par. 6. 476See the Convention on the Rights of the Child(1989), 1577 UNTS 3; and generally Van Bueren, G., The International Law on the Rights of the Child (1995). See also Joseph, Schultz and Castan (2000) supra, note 23 above, pp. 467-494.
477Q 25:74.
194
in his Traditions478 Muhammad by this Prophet and accommodates one of stated specifically the right to be registered after birth. From the context of the Qur'an and the Prophet's Traditions, Omran has identified that children have at least "ten cardinal rights" under Islamic law, which he listed as:
1. The right (of the child) to genetic purity. 2.
The right (of the child) to life.
3. The right (of the child) to legitimacy and good name. 4. The right (of the child) to breast-feeding, shelter, maintenance and support, including health care and nutrition. 5. The right (of the child) to separate sleeping arrangements for children. 6.
The right (of the child) to future security.
The right (of the child) to religious training and good upbringing. 8. The right (of the child) to education, and training in sports and self-defence.
7.
9. The right (of the child) to equitable treatment regardless of gender or other factors. 10. The right (of the child) that all funds used in their support come only from 479 legitimate sources.
Although all Muslim States have ratified the UN Convention on the Rights of the Child law Islamic have however them on grounds of reservations or (CRC) many of entered 481 480 in issue Instead of Many of the reservations are of adoption. respect of the Shari'ah (kaf(ilah) for to law Islamic system provide alternative a guardianship provides adoption, 482 deprived family-care for children of natural parental care. Another area of possible conflict is the position of Islamic law on the status of children conceived out of wedlock, which has 483 States. in its Muslim HRC concluding observations on many been raised by the Nevertheless, Muslim States generally believe that "the provisions set forth in (the Children's) Convention are in conformity with the teachings of Islamic law concerning the 84 Thus Article OIC Cairo 7 human the the fully the child". of of to rights respect need Declaration provides that: 478See.Karim, F., (1994) supra, note 197 above,Vol. 2, p.620, Hadith No. 379w. 479Omran, A. R., (1992) supra, note 140above,p. 32.
480See UN Human Rights Treaty Website at: http: //www. unhchr. ch/htnil/menu3/b/treatyi5 asp.htm [17/2/2001]. 481See also Leblanc, L. J., "Reservations to the Convention on the Rights of the Child: A Macroscopic View of State Practice" (1996) 4 International Journal of Children's Rights 357-381.
482Seee.g. The Initial Report of the Kingdom of Saudi Arabia on the CRC, UN Doc CRC/C/Add.2, (29/3/2000) Par.60. CRC, 21 Art. 20(3) Art. the is of and supra, note 476 above. Kafalah recognisedunder
483This issue is addressed in the next chapter under Article 10(3) of the ICESCR, pp. 235-38 below. 4'80See Initial Report of Saudi Arabia to the CRC, supra note 482 above, Par. 27. See also the General Statement of the CRC drafting during that: "The provisions of the draft Convention contradict neither the the Emirates the of Arab United
195
(a) As of the moment of birth, every child has rights due from the parents, society and the state to be accorded proper nursing, education and material, hygienic and moral care. Both the fetus and the mother must be protected and accorded special care. (b) Parents and those in such like capacity have the right to choose the type of education they desire for their children provided they take into consideration the interest and future of the children in accordance with ethical values of the principles of Shari'ah.
POLITICAL RIGHTS Article
25
Every citizen shall have the right and the opportunity, without mentioned in article 2 and without unreasonable restrictions; (a) To take part in the conduct of public representatives;
directly
affairs,
any of the restrictions
or through freely chosen
(b) To vote and to be elected at genuine periodic elections which shall be by universal and ballot, be held by free the secret guaranteeing and shall expression of the suffrage equal will of the electors; (c) To have access, on general terms of equality, to public service in his country.
The only provisions of the ICCPR on political rights in the strict sense of the word are those contained in Article right and opportunity public
reflect a democratic
of every citizen to participate
affairs of State.
participation
25. The provisions
Thus autocratic
by citizens"
directly
regimes "which
are incompatible
with Article
process that calls for the
or indirectly
in the conduct of for political
offer no opportunities
25.485 The HRC has indicated
that:
"The conduct of public affairs, referred to in paragraph (a), is a broad concept which relates to the exercise of political administrative implementation
power,
in particular
the exercise of legislative,
powers. It covers all aspects of public administration, of policy
at international,
national,
by individual the means which and of powers
regional
executive
and
and the formulation
and
and local levels. The allocation
citizens exercise the right to participate
in the
by be 25 by the constitution and should established affairs protected article of public conduct 486 It is important to note that the political laws" do the rights, unlike civil rights, not other individual to every apply prescribe the criteria
but only to citizens of particular
for citizenship
States. The Covenant
of State Parties but the HRC has indicated
does not that "State
law Provisional Islamic the the " Detrick,S. (ed.) provisions of constitutionof the UnitedArabEmirates. nor of principles TheUnitedNationsConvention on theRightsof theChild:A Guideto the "TravauxPreparatoires"(1992)50.
485Joseph, Schultz and Castan, (2000) supra, note 23 above p. 498. See also Steiner, H., "Political Power as a Human Right" (1988) 1 Harvard Human Rights Yearbook, 77.
196
in define legal the the the which citizenship context of provisions outline should reports distinctions between in "(n)o 25", by Article that are and permitted citizens rights protected the enjoyment of these rights on the grounds of race, colour, sex, language, religion, political birth, or other statusi487 social origin, property, national or or other opinion, The discussion of political principles is often very topical from an Islamic perspective. This is due to the fact that the Qur'an and Sunnah has not laid down any specific political ideology for the Islamic State. The Shari `ah only emphasises good governance based on justice, equity and responsibility but leaves its actual administration in the hands of the however has is Shari `ah There that the the right the community within evidence community. 488 indirectly. directly The Qur'an states in many verses that or to elect its leaders either God489 but in belongs heavens to that the also mentions other verses and earth of sovereignty 49° beings Earth. Islamic scholars and God has made human agents and representatives on jurists agree that this representative capacity of human beings is conferred upon all human beings alike. Based on these Qur'anic provisions and with reference to the practices of Muhammad, demise Prophet Islamic Caliphs the almost all contemporary of after of election legalists concur that every Muslim has the right and the opportunity to participate, either directly or indirectly in the public affairs and electoral processes of the State. For example Maududi, writing on the right of Muslims to participate in the public affairs of the Islamic State, stated as follows: "According to Islam, governments are representatives (khalifa) of the Creator of the universe: this responsibility is not entrusted to any individual or family or to any but Muslim The Holy the to community. or group of entire class people, particular Qur'an says: "God has promised to appoint those of you who believe and do good deeds as (His) representatives on earth" (24: 55). This clearly indicates that khildfa (representation) is a collective gift of God in which the right of every individual Muslim is neither more nor less than the right of any other person. The method recommended by the Holy Qur'an for running the affairs of the state is as follows: "And their business is (conducted) through consultation among themselves" (Q43: 38). According to this principle it is the right of every Muslim have direct have in the to the to a representative chosen say affairs of state or a either by him and other Muslims to participate in the running of the state. Under no circumstances does Islam permit an individual or a group or party of individuals to deprive the common Muslims of their rights or usurp powers of the it for individual does Islam Nor to put on a false regard as and proper an right state. by legislative and up a assembly means of such tactics as fraud, of setting show persecution, bribery and so on, get himself and men of his choice elected to the 496GeneralComment25, Par.5. 487GeneralComment25, Par. 3.
48$See e.g. Zaidan, A. K., Individual and the State in Islamic Law (1982) ppl6-26. 489See e.g. Q3: 189-
490Seee.g. Q 24:55.
197
is This not only treachery against the people whose rights are illegally assembly. but Creator has the who against entrusted Muslims to rule on earth on also usurped, His behalf, and has prescribed the procedure of an assembly for exercising these powers.
The shard or legislative assemblyshould embracethe following principles: 1. The executive head of the government and the members of the assembly should be elected by free and independent choice of the people. 2.
The people and their representatives should have the right to criticize and freely express their opinions.
3.
The real conditions of the country should be brought before the people without suppression of fact so that they are in a position to judge whether the government is working properly or not.
4.
There should be adequate guarantee that only those people who have the support of the masses should rule over the country and those who fail to win this support should be removed from their position of authority. 9A91
The Qur'anic principle of consultation (shürä) to which Maududi referred above, has been interpreted by most contemporary Islamic legalists to accommodate the process of democratic free and fair elections for the selection of leaders. In fact some Islamic scholars fair best free because the to the this of elections way reflect and as principle shürä, consider involves the participation of all citizens in selecting their ruler and giving him the contract to 492 law. bay `ah (allegiance) known Islamic This indicates them that as under clearly govern the democratic process of societal participation in governance and state affairs envisaged Article under
25 is compatible
with
Islamic principles
of justice,
equity and good
Article 23(b) OIC Cairo Thus Declaration the that: of provides governance. shall have the right to participate directly or indirectly in the administration of his country's public affairs. He shall also have the right to assume public office in accordance with the provisions of Shari'ah. " "Everyone
Two issues remain to be examined here. It is often assumed that the political rights of inconsistent law Islamic totally thus are and women constrained under and with non-Muslims the opening clause of Article 25 which provides that every citizen shall have the right and the "without the to political exercise rights opportunity
any of the restrictions mentioned in
With 2 unreasonable restrictions". without and respect to voting and taking part in the article State, is Islamic the there law that prohibits affairs of public nothing under of conduct Islamic State from the in citizens of the or non-Muslim voting and participating women 491Maududi, A. A., (1993), supra, note 179 above,p. 33-34.
492See e.g. Hussein, G. M., "The Shura and Human Rights in Islamic Law", Paper delivered at the Cairo Conference on Democracy and the Rule of Law, (Dec. 7`h- 9th 1997) p. 5-6; and also, Chaudhry, M. S., (1995) supra, note 82 above, pp. 5660.
198
State. The contemporary problem with the status of non-Muslims under the affairs of public Islamic law is principally due to the traditional interpretation of Islam as both a religion and a Thus Muslim subject was traditionally a nationality.
considered as possessing full religious
in State Islamic the while the non-Muslim subject was considered as and political nationality 493 but has Doi the the therefore not political nationality religious nationality. only possessing between distinction Muslims the that and non-Muslims was and remains merely out pointed that of political administration and not of human rights, and concluded that: "It is wrong is based definite ideology, State Islamic that the State will an on a since presumption 494 its fold" lack The by the elements within of religious non-Islamic nationality annihilate non-Muslims
in the Islamic State only exempted them from both duties and rights that
involved the religious aspects of the State and "not due to a tendency of imposing on them an 495 humane the treatment The they are entitled to. inferior social position nor minimising issue is forms to the the of citizenship and prohibition comparable of all of racial situation in international human rights law. Although the International Convention on 496 prohibits "any distinction, exclusion, the Elimination of all Forms of Racial Discrimination discrimination
descent, based has colour, or on race, national or ethnic or preference origin which restriction impairing the recognition, enjoyment or exercise, on an the purpose or effect of nullifying or freedoms in fundamental human footing, the rights and political, economic, social, of equal it field life, " "distinctions, exempted of public any other exclusions, restrictions or or cultural 497 between " The distinction, that traditional citizens and non-citizens. made preferences ... Islamic law made between Muslims and non-Muslims in aspiring to leadership of the Islamic State was therefore in the nature of the distinction made between citizens and non-citizens in State. thus that: contended al-Ghunaimi secular a "The conditions of acquiring the nationality of a particular state is a matter of its own discretion. It is not to be construed as an indication of contempt of those who could not acquire the necessary qualifications. ... Consequently, in a modern state, we often come across restrictions imposed on non-nationals, in one way or another, for a better organization of the society. This is likewise with the rights of the dhimmis in the Islamic state."498
Under traditional Islamic law, the theory was that of totality of religious citizenship Muslim from his "as a migrates soon as non-Muslim home and comes to Islamic whereby 493See generally al-Qardäwi, Y., Non Muslims in the Islamic Society, Hamad, K. M., and Shah, M. A., (Trans. ) (1985). 494Doi, A. R., (1984) supra, note 82 above, p. 427. 495See A1-Ghunaimi, M. T., The Muslim Conception of International Law and the Western Approach (1968) p. 189. 496660 UNTS 195. 497ibid. Art. 1(1)(2).
199
territory with the intention of residing there, he at once becomes a full-fledged Muslim Muslim he has the the Muslim the the citizens same rights as other and same state; of citizen States have departed Muslim However, today to they"499. of seem all modern obligations as from the traditional theory of totality of religious citizenship to the extent that a foreign Muslim does not today acquire citizenship of any modern Muslim State for merely being a Muslim. Citizenship is generally based on national and geographical grounds in the Muslim is the Conversely, the today. nor political nationality religious nationality neither countries of States Muslim for its the within political rights many enjoyment of certain own enough on both Only the through religious of combination today.
and political
nationality
in an
individual may he, for instance, have a right to the highest political office in many Muslim States of today. It is noteworthy that, all the Qur'anic verses on leadership and authority do but to emphasise righteousness all and upholding equally religiosity emphasise not merely justice for all. Thus while for ideological reasons the ideal is to have a Muslim as the Head of instances from Prophet State, the time Islamic in there many right of State are otherwise an 500 important public offices. Muhammad of non-Muslims being appointed to very Next is the question of the political rights of women under Islamic law. The question having in from law the Islamic say or a participating public voting, women prohibits whether in its by Muslim States. At is State the the practice some often misrepresented affairs of "regarding for instance 7(a), Kuwait CEDAW, a reservation entered article ratification of inasmuch as the provision contained in that paragraph conflicts with the Kuwaiti Electoral 501 is for be to vote restricted to males". election and eligible Act, under which the right to That reservation, as it clearly stated, is on grounds of Kuwaiti Electoral Act and not Islamic law. On the rights of women under the Shari `ah to vote and to participate in the shürä and has State, Hussein follows: in the the the summarised position as affairs of public generally "Nowhere in the Qur'an or Sunna does exist any verse or rule which prevents or can be construed to prevent women from participating in the Shura process. Women did do participate in the Shura and participated and continue to participate in the running holding Islamic the through the of various governmental states of various affairs of top positions and through the Shura process. Those who do not support women's participation in the Shura process and in base the their views not on the principles and rules of the the of state affairs running Islamic religion and the Islamic Shari 'a but on mere social concerns and fears which do not rest on any Islamic principle or rule. Of course, social concerns and fears do 498Al-Ghunaimi,
(1968) supra, note 495 above, p. 189.
499Hamidullah, M., (7`hRevisedEd. 1977)supra, note 190 above,p. 110-111,Par.199.
S0°See e.g. Ramadan, S., Islamic Law, Its Scope and Equity, (1970) p. 144-145. See also al-Qardäwi, Y., (1985) supra, note 493 above, pp. 12-14.
sotSeeUN Human Rights Treaty Website at: http://www. unhchr.chfhtmi/mcnu3/b/treaty9 asp.htm [17/2/2001].
200
change from state to state, and from time to time within the same state. It should be stressed that most recent writers on the topic support the right of women to participate in the Shura process and in running the affairs of their own countries. It is therefore, an Islamic principle that women do indeed have the right to participate in the Shura process and in running the public and governmental affairs of their states."502
However with respect to the right of being elected to the highest public office, Islamic jurists differ on whether a woman can be elected to head an Islamic State. The differences of interpretation from the of a Tradition in which it is reported that when the opinion arise Prophet heard that the Persians had enthroned a daughter of the Chosroe as their Queen he 503 leaves its in hands "Any that the affairs nation of a woman would not prosper". said: Although the wording of the Tradition does not specifically
contain a prohibition
on a
in head leader Islamic State, being as an elected a or one school of thought construes woman from it such a prohibition on the argument that consideration of the nation's prosperity is an important determinant of who is elected to its leadership. Some scholars however considered it to be an isolated Tradition (ahäd) and some others have expressed doubts about its Tradition inter by the Abü Bakratah that the on grounds, alia, was reported authenticity during the "Battle of the Camel" in which Ai'shah, the widow of Prophet Muhammad led ibn Ali Abi fourth Tälib, Caliph. Usmani argues that the an army against commanded and despite its report on the said occasion many of the illustrious companions of the Prophet still in battle leadership Ai'shah the the under of without anyone disclaiming her participated leadership. He thus concluded that the Tradition did not connote a prohibition
of the
Head State it is but indicating that it may not woman as of a of generally advice appointment 504 Head State. to be advisable appoint a woman as of On the basis of that Tradition, a petition was brought before the Federal Shariat Court of Pakistan in 1982 challenging the appointment of women judges as being violative of Islamic law. In his judgement, the Chief Judge of the Court, Aftab Hussain, CJ, extensively different Islamic jurists the opinions of on the Tradition. examined
The learned judge cited a
list of classical and contemporary Islamic legal works505 to establish that Imam Ibn Jarir alTabari, for instance, favoured the appointment of a woman both as a judge and as a Head of State and that a similar view was attributed to Imam Malik, which was favoured by the MälIki jurists as well. In dismissing the petition the learned judge observed, inter alia, that: 5°2Hussein,G.M., (1997) supra, note 492 above,at 5. 503ReportedBy al-Bukhäri. Seee.g. Karim, F., (1994) supra, note 197 above,Vol. 2., p.570, Hadith No.7.
$04Usmani, U. A., Figh al-Qur'an, Vol. 111,pp. 286-287 and Usmani, U. A., I'1ä al-Sunan, Vol. 15, p. 28 cited in the judgement in Burney CJ, Ansar Hussain, Aftab v. Federation of Pakistan, PLD 1983 Federal Shariat Court, 73 at 86. of
201
"It is on account of this Hadis (Tradition) that in the 22 points of the Ulema (learned jurists) of Pakistan which were presented to the Government as necessary Constitution, No. framing 12 to the of a point specifically said that the preliminaries Head of the State will be a Muslim male. This point was re-examined during the (sic) for Elections in Presidential 1964 the of which Miss of campaigne course Fatima Jinnah was nominated by the opposition parties to fight the election to the Field Martial (sic) Pakistan Muhammad Ayub President the against of office of Khan. After a research the view as about a woman being qualified for the office of the Head of the State was changed on the basis of opinions of two of the most in Century Indo Pakistan, Maulana Ashraf 20th Ali Ulema the namely of renowned Thanvi and Allama Syed Sulaiman Nadvi. The Jamait-e-Islamia Pakistan endorsed this view after retracting its earlier stand on the matter which was reflected in the for Maulana Maudoodi by No. 12. this was severely criticised point above-mentioned Kalim Bahadur in his book "Jamait-i-Islami of Pakistan". But this criticism was not justified since it is duty of a Muslim to accept the truth and to change and retract his known is doctrine In this the technical as of (Raju' or parlance earlier view. retreat). "sob
There is no verse of the Qur'an that specifically prohibits a woman from being elected to itself Tradition leaves law. The for Islamic the the wording of under room any public office different opinions that have been expressed by Islamic jurists concerning its interpretation. This provides flexibility on the matter as was demonstrated by the change of the initial view in in Justice Hussain's judgement 1964 Pakistani as expressed the scholars religious of above. The controversy surrounding the election of women to the highest political office of the State is not unique to Islam. The problem exists in almost all societies of today in different forms. The provisions of Article 25 however only demands that their right and opportunity to be elected be not denied, which the Tradition
of the Prophet quoted above does not
by jurists. Islamic deny the of rightly opined some as specifically
THE RIGHT
TO EQUALITY
BEFORE THE LAW
Article 26 All persons are equal before the law and are entitled without any discrimination to the equal law. In law discrimination this the the respect, shall prohibit any of and guarantee protection to all persons equal and effective protection against discrimination on any ground such as language, religion, political or other opinion, national or social origin, sex, colour, race, birth or other status. property,
505e.g., Purr al-Muhtdr, Sharh al-Wagäyä, Fath al-Bär?, Hedaya, al-Muhalld and Ahkäm al-Sultiyyah. 506Ansar Burney v. Federation of Pakistan, PLD 1983 Federal Shariat Court, 73 at 85.
202
Reference has earlier been made to Article 26 together with Articles 2(1) and 3 on right 507Article 26 is more general and extends further than to equality and non-discrimination. Articles 2(1) and 3. The HRC has observed that Article
26 is not limited to the rights
in in in field discrimination law fact but "prohibits Covenant the or any provided under 508 It prohibits discrimination in both the by public authorities". regulated and protected legislation
Article by State laws parties. and application of
26 fortifies
the right to
Article Article 16 16. While law before the under guaranteed recognition as a person further individual, Article 26 in law for to goes guarantee an every standing a guarantees individual. Judges law for before the must and public administrators every standing equal discrimination. law the without thus apply The Committee has however observed also that "not every differentiation of treatment discrimination, constitute
if the criteria for such differentiation
are reasonable and 509 is legitimate Covenant". is if the to the which under a purpose achieve aim and objective differentiation has the HRC and objective of reasonable on a casequestion The addressed
will
510 The onus however lies on a State Party to prove the reasonableness and basis by-case . Covenant. differentiation the under objectivity of any A State Party may also need to take affirmative action to redress existing discrimination in has HRC that that: The regard observed society. of against some members "... the principle of equality sometimes requires States parties to take affirmative help diminish in to to which cause or conditions perpetuate or eliminate order action discrimination prohibited by the Covenant. For example, in a State where the general impair their the prevent or enjoyment of population part of certain of a conditions human rights, the State should take specific action to correct those conditions. Such for involve a time to the part of the population concerned certain granting may action in treatment specific matters as compared with the rest of the population. preferential However, as long as such action is needed to correct discrimination in fact, it is a '" Covenant". differentiation under the case of legitimate
The general notion of equality and non-discrimination is also quite fundamental in Islamic law. The Shari'ah recognises that all human beings are created equal. The Prophet
farewell follows: in his declared had as sermon Muhammad 507Seep. 109 above.
508General Comment 18, Par. 12. See also Zwaan-de Vries . v. The Netherlands, and Broeks. v. The Netherlands, Communication No. 172/1984,42 U. N. GAOR Supp. (No. 40) at 139, U. N. Doc. A/42/40 (1987), Par. 12.3. 509General Comment 18, Par. 13. See also the Dissenting Opinion of Judge Tanaka in the ICJ South West Africa Cases (1966) ICJ Report ofJudgements p. 305 and McKean, W., Equality and Discrimination Under International Law (1983) 260. 1° See Joseph, Scultz and Castan (2000) supra, note 23 above, pp540-556. 51 General Comment 18, Par. 10. See also Art. 2(2) of the International Convention on the Elimination of all Forms of Racial Discrimination (1966), 660 UNTS 195.
203
"0 People! be aware: your God is One..., No Arab has any superiority over a nonArab and no non-Arab any superiority over an Arab, and no white one has any basis black black the one over a white one, except on nor any one superiority over a in Sight God is honourable the the most pious and The of among you most of piety. righteous. "
The Shari `ah does accord additional honour (in the sight of God) to the most pious and by is God in Chapter 4, those As this who right conferred on a special observed righteous. 512This additional honour is "in the sight of God" because the determination of Him. worship Article Cairo Him. 19(a) OIC lies the "most of exclusively with the pious and righteous" Declaration provides that "All
individuals
are equal before the law, without distinction
between the ruler and the ruled". The right to equality before the law for every individual under Islamic law has been discussed extensively under the right to fair hearing and due process in Article 14 above. We have also examined the differences between Islamic law and international human rights law regarding equality and non-discrimination s'3 in this chapter. articles relevant
THE RIGHTS
OF ETHNIC,
on grounds of sex and religion under other
RELIGIOUS
OR LINGUISTIC
MINORITIES
Article 27 In those States in which ethnic, religious or linguistic minorities exist, persons belonging to in be denied the community with the other members of their not right, shall such minorities group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
Unfortunately there is today in every part of the world some minority group that is being denied some right for the mere fact of being in minority. While the general prohibition of distinction on grounds of race, religion, language and other status aims also at guaranteeing Covenant in the belonging the the individuals to all rights under enjoy minority groups that human being, Article 27 the additionally guarantees other right of as every manner same individuals belonging to ethnic, religious or linguistic minorities to enjoy their own culture, 514 language. their the their own religion and/or use of own profession and practice of Notwithstanding the vagueness and non-definition of the term "minority" in the Covenant, S12Seepp. 50 above.
513See e.g. pp. 172-93 above
$14For a full discussionon Article 27 seee.g. Sohn, L. B., The Rights of Minorities, in Henkin, L., (1981) supra, note 6 above,pp.270ff.
204
the provision in Article 27 reflects an appreciation of the diversity in human nature and be respected. must culture, which The HRC has observed that "this article establishes and recognizes a right which is belonging is individuals distinct from, to minority groups and which on and conferred individuals in the to, which, as common with everyone else, they other rights all additional Covenant", "the designed be the to that to and enjoy under persons entitled already are in belong to those a group and who share common a culture, religion who protected are individuals " Committee "the designed be The language. that to also pointed out a and/or 515 State be citizens of the party". not need protected From an Islamic perspective, the Qur'an specifically recognises this diversity in human nature and culture and also prohibits
the employment
of this diversity
as basis for
discrimination
amongst human beings. Rather human diversity is indicated as basis for
identification
and appreciation of the powers and divine wisdom of God, the Creator of
humanity. In respect of ethnic differences the Qur'an states that: "0 Mankind! We created you from a single (pair) of a male and female, and made you into nations and tribes that you may know each other (not that you may despise [or discriminate against] each other). The most honoured of you in the sight of God is he who is most righteous amongst you. And God has full knowledge and is wellacquainted with all things. "s'6
In respect of religious differences the Qur'an states that: "Say: (0 Muhammad to the non-believers): "0 you that reject faith! I worship not that which you worship. Nor will you worship that which I worship. And I shall not worship that which you are worshipping. Nor will you worship that which I worship. To you be your religion, and to me my religion. "s"
And in respectof linguistic differences the Qur'an statesthat: "And among His (God's) signs is the creation of the heavens and earth, and the difference of your language and colours. Verily in that are indeed signs for men of sound knowledgei51'
Apart from the above verses that clearly point towards appreciation of differences Traditions Prophet humans, Muhammad there the that enjoin the are also many of among 519 Islamic law. the rights of minorities under of protection susGeneralComment23, Par. I and 5.1. Seefurther Joseph,Schultz and Castan(2000) supra, note 23 above,pp.572-595. 516Q49:13. 517Q109:1-6.
205
CONCLUDING
REMARKS
We have endeavouredin this chapter to elaborately examine the substantiveguarantees have law, is in light Covenant for Islamic ICCPR that the the the most the and shown of of is law. The Shari 'ah Islamic inconsistent that the to myth with an antithesis civil and not part due for long has been to the confrontational approach so mainly sustained political rights international law between human in Islamic law. The and rights comparisons adopted often investigative approach adopted here opens the door for a better understanding of the sociolegal problems and how to handle them in a manner that promotes the noble objective of ideal fostering human dignity human an and community, which are common enhancing international human Shari law. both `ah the and rights objectives of The analyses reveal that the Shari ah does not oppose or prohibit the guarantee of civil and political
democratic liberal and principles rights,
or the liberty
and freedom of,
individuals in relation to the State. The areas of conflict identified, particularly concerning between men and women, prohibition of rights equality of the scope
of inhuman and
degrading punishments, freedom of religion and some death penalty cases are also shown to be not insurmountable where addressed open-mindedly
and in a well-informed
manner.
With a better understanding of the socio-legal problems as expounded herein, Islamic law, being the domestic law of many Muslim States, can serve as a vehicle for the full realisation ICCPR Muslim the the that under the rights guaranteed with political result and civil of States would not only consider themselves under international legal duty but also under a to the respect and ensure civil and political rights guaranteed under the obligation religious Covenant. The most practical approach, as will be fully argued in the concluding chapter of this in HRC is the that should, appreciation of the varied social values and ideological thesis, States, doctrine in its interpretation its Member the adopt margin of appreciation varieties of in doctrine has been The European Human Covenant. the the vindicated practice within of Rights regime. It will enable the Committee to maintain a reasonable universal standard of Covenant the under and at the same time respect reasonable and the rights guaranteed justifiable social and moral values of all its State Parties. Correlatively, Muslim States that have duty demonstrate highest law humanitarian to the Islamic a also and political will apply
sis Q30:22. 519See e.g. Ramadan, S., (1970) supra, note 500 above, pp. 146-148. See also Article 25 above for the discussion of the The right to the enjoyment of cultural life under Islamic law is the of non-Muslim minorities. rights political of recognition further addressed under Article 15 of the ICESCR in the next Chapter.
206
in respect of their obligations under the Covenant through a constructive interpretation and implementation of the Shari `ah.
207
7
CHAPTER
The International Covenant on Economic, Social and Cultural Rights (ICESCR) in the Light of Islamic Law INTRODUCTORY
REMARKS
As the ICCPR does for civil and political rights, so does the International Covenant on law (ICESCR) the Cultural Rights Social on economic, positive constitute Economic, and UN. human It international the the objective of entered rights within rights cultural and social including by States, 39 date been 143 has 1976 to 3 January of force ratified into up and on 1 (OIC). Conference Of Muslim Islamic Organisation the States the Member six 56 of of the Sudan) have (Iran, Tunisia in three for this and ratified research, States selected case study 2 have Turkey) Pakistan (Saudi Arabia, three the and not. ICESCR other while the The UN Charter had provided the basic foundation for economic, social and cultural
UN inter that the 55 Article its in shall promote: alia, which provided, rights (a) higher standardsof living, full employment, and conditions of economic development and and social progress (b) solutions of international economic, social, health, and related problems; and international cultural and educational co-operation.
Articles 22-27 of the UDHR also followed with some general provisions on economic, UN International Bill ICESCR the The the of as part of of adoption social and cultural rights. Rights legally put to rest, at least for the States parties thereto, the old opposing argument 3 Although human economic, rights per se. that economic, social and cultural rights were not does "second this termed rights generation" not often social and cultural rights are still Many in "second to the political they civil and rights. that rights class" any way are suggest human rights scholars argue strongly that economic, social and cultural rights are very
' See the Status of Ratification of the ICESCR at the UN Human Rights Treaty Website at: ht! p: //www. unhchr. cbfhtmi/menti3/b/a cescr.htm [15/2/ 2001].
2Turkey signed the ICESCR on 15 August 2000 but is yet to ratify it.
3 e.g. See Arambulo, K., Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights, Theoretical and Procedural Aspects (1999) Especially Chapters III and IV, for an analyses of the arguments against Economic, Social Cultural human Rights. of and the character in rights of support and
208
his State In full for the of of civil and political rights. realisation and. enjoyment essential
Union addressin 1944the US PresidentRoosevelthad observedthat: "... true individual freedom cannot exist without economic security and independence. `Necessitous men are not free men. ' People who are out of a job are the stuff of which dictatorships are made. "4
Given the choice, most individuals in developing nations would practically choose a before thinking of civil and cultural rights social and of economic, guarantee genuine basic Shue thus cultural rights as rights and social and economic, considered political rights. is by if fully, that "(n)o supposedly protected any right that all, enjoy at can one argued healthy life. "5 Craven has for lacks if he the submitted a reasonably essentials or she society importance has little for to the "freedom starving or that example, expression, of similarly be inherent in be dignity human to "6 Realistically, still said a can or right homeless. no impoverished human being, illiterate, jobless, homeless, except perhaps and hungry, sick, in hardly him, flows life those that the to circumstances which under can the still right only in developing importance ICESCR the dignity. The life of nations and be a relevance of
be therefore over-emphasised. cannot All the countries of the Muslim world today fall within the category of developing important is if in Muslim ICESCR thus the the the The very world of promotion nations. if be be individual the and political the and even civil rights must enhanced dignity of must ensured. Following ICESCR contradicts realisation
the approach
in the light of Islamic the provisions
of the last chapter, law. We will
of the ICESCR
this chapter
will
equally
examine
the
endeavour to determine whether the Sharjah
or whether it can serve as a vehicle
in Covenant Muslim the the recognised under rights of
for the full
States that apply Islamic
law fully or as part of domestic law. Reference shall be made to the General Comments
and
Rights (ESCR Committee)
and
Committee the practice of
on Economic,
to other scholarly
expositions
ESCR Committee
will
Social and Cultural
formulated
by the
guide for relevant Articles
of the
on the Covenant. The reporting
also be used as an interpretational
guidelines
(Jan.11 1944)in Israel.J.,(ed) TheStateof the UnionMessages ° SeeEleventhAnnualMessage of Congress of the Presidents (1966), Vol. 3, pp. 2875, and 2881.
s Shue, H., Basic Rights, Subsistence, Affluence, and U.S. Foreign Policy (1979) p. 24-25. 6 Craven, M. C. R., The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (1995) p. 13.
209
7 Covenant. We will
international from the rights an substantive analyse each of
law
in done last Reference law the by Islamic followed as was chapter. perspective an perspective in Islam Human Rights Cairo Declaration OIC be to the on and reports of made will also Muslim States parties to the Covenant where relevant.
THE RIGHTS
"RECOGNIZED"
UNDER THE ICESCR
Apart from the right of self-determination in Article 1 and the equality of rights between "recognizes" ICESCR in Article 3, the nine substantive economic, social men and women They are: rights. and cultural Article 6
The right to work.
7
The right to enjoy just and favourable conditions of work.
8
Trade Union rights.
9
The right to social security and social insurance.
10
Family rights.
11
The right to adequatestandardof living.
12
The right to the highest attainable standardof physical and mental health.
13-14
The right to education.
15
The right to cultural life and benefits of scientific
' progress.
The provisions in Article 1 on the right of self-determination and Article 3 on equality of in identical ICCPR that the the between already with of examined women are and men rights 9 last chapter. Those two articles will thus not be re-addressed in this chapter, rather their Again first here be last in the we will mutatis mutandis. applicable chapter will analysis identify the fundamental purpose of the ICESCR and also analyse the obligation of State Parties under Article 2 before proceeding to examine the substantive rights.
7 See Revised General Guidelines Regarding The Form and Contents Of Reports To Be Submitted By States parties Under Articles 16 And 17 Of The International Covenant On Economic, Social and Cultural Rights. (Basic Reference Document) UN Doc E/C. 12/1991/1 of 17 June 1991 (Hereinafter referred to as Revised Guidelines). s All these rights are contained in Part III of the ICESCR. 'See pp. 105 and 109 above.
210
THE OBJECT AND PURPOSE OF THE COVENANT
The object and purpose of the ICESCR is similar to that of the ICCPR in the sense that it individual from the the the social and cultural rights economic, of recognised guarantees States parties to it. The preamble of the ICESCR refers to the fact that the rights recognised in it derive from the inherent dignity of the human person and that enjoyment of economic, ideal lead "the free human beings to the will realisation of of rights cultural and social "10 Economic, deal from fear freedom social and want. and cultural rights essentially enjoying beings, human basic thus the principal purpose of this group of needs of with subsistence and dignified living for human is the an adequate and standard of of realisation every rights being. The purpose and ethical basis of the ICESCR are thus very laudable and Shari `ah Islamic law. the the the of and overall objectives purpose with of commensurate They are ideals which any Muslim State that purports to pursue the noble objectives of the Shari `ah has both a moral and legal obligation to uphold under its application of Islamic law. The Qur'an states that all the good things and rich resources of the universe are created for humanity" basic of needs the
and it specifically alluded to the significance of freedom from
hunger and from fear to human existence as follows: "(It is) He Who provided them with food against hunger, and with security against fear. " 12
OBLIGATIONS
OF STATES PARTIES UNDER THE ICESCR
Article 2 1.
Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full in the present Covenant by all appropriate means, the of rights recognized realization including particularly the adoption of legislative measures.
2.
The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind language, to sex, colour, religion, political or other opinion, national or social race, as birth or other status. property, origin,
3.
Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.
10See generally the Preamble of the ICESCR. II See e.g. Q2: 29 and Q31: 20.
12Q106:4.
211
The description of the obligations of States parties to the ICESCR differs significantly from that of the ICCPR. The obligations of States Parties are recognised under the ICESCR "progressive the the to being require only realisation" resources and of availability subject as 13 This tends to remove the steam from the speedy realisation of the of the recognised rights. in developing Committee The ESCR nations. economic, social and cultural rights, especially impress differences 3 its Comment General that the these to through point has endeavoured 14 States Covenant. It down the be the noted of under obligations seen as watering must not for the Covenant "while the and acknowledges realization progressive provides that it imposes limits due to the various obligations also which resources, of available constraints 15 the to For to the immediate ensure right of everyone obligation example, effect". are of form and join a trade union
(Article 8) is of immediate effect. The obligations of States
"obligations "obligations Covenant thus of conduct" and of of the a combination are under 16While the undertaking of State Parties "to take steps" under Article 2(1) to realise result". is "obligation has immediate in Covenant the of conduct" and an the rights protected is in "obligation the the cases, an most of rights, result" of relevant realization application, '7 The ESCR Committee has interpreted the obligations be achieved progressively. that may "obligations follows: first by the Article 2(1) Parties of conduct" as States stressing under of "... while the full realization of the relevant rights may be achieved progressively, be time taken the towards a short within reasonably after the goal must steps Such steps should be Covenant's entry into force for the States concerned. deliberate, concrete and targeted as clearly as possible towards meeting the be in The in Covenant. the means should used which order to obligations recognized in be 2(1) "all to to take the article appropriate are stated steps obligation satisfy 'S legislative including the measures". particularly adoption of means,
"obligation the to then Committee went on explain The
of results" and the progressive
follows: the as rights realisation of "... the fact that realization over time, or in other words progressively, is foreseen depriving be Covenant the obligation of all the as should not misinterpreted under flexibility device, hand is It the the a necessary reflecting on one content. meaningful " See Steiner, H. J., and Alston, P., International Human Rights in Context: Law Politics Morals (2"d Ed. 2000) p. 246. 14Committee on Economic, Social and Cultural Rights, General Comment 3; UN Doc. HRI\GEN\l\Rev. I at 45 (1994) in hereinafter be General Comments Comment General followed by its Committee's to (The /23. will referred as E/1991 All the Committee's General Comments are available Online at: http: //www. unhchr. ch/tbs/doc. nsf [18/2/2001]. number). IS General Comment 3, Par. 1. 16See e.g. Report of the International Law Commission (1977) 2 Yearbook of the International Law Commission 20, Par. 8. States G., Nature Scope Parties' Obligations "The Quinn, P., of Alston, and under the International Covenant and See also Social and Cultural Rights" (1987) 9 Human Rights Quarterly, 156 at 165-166; and Craven, M. C. R., (1995) Economic, on 107-109. 6 pp. above, supra, note
17SeeAlston, P., and Quinn, G., (1987), ibid. 11SeeGeneral Comment 3, Par. 2 and 3.
212
full for in involved difficulties the any country ensuring realities of the real world and hand, On the the phrase other rights. cultural and social of economic, realization d'^tre, indeed the the light in be the of the rasion objective, overall of read must Covenant which is to establish clear obligations for States parties in respect of the full imposes It to in thus move obligation as the an question. rights of realization Moreover, that towards goal. any possible expeditiously and effectively as deliberately retrogressive measures in that regard would require the most careful by justified be fully to the totality the to of reference need would consideration and full in the Covenant the for in the the maximum of use of context and rights provided "9 resources. available
determination itself "the Committee as to the ultimate Although also confers upon 20 in been have the taken" above obligations, of respect measures appropriate all whether "obligations both "obligations in doubt and of result" is that conduct" of respect of no there States faith Parties the to take the humane depend the of good and volition on much will still In the the towards and cultural rights. social of economic, realisation steps appropriate the of economic, social and cultural nature and resource-demanding onerous of appreciation individually "take to 2(1) the steps and Article parties contracting of obligation states rights, to technical" economic and international especially co-operation, and assistance through favour the that Developing argument certainly would nations the rights guaranteed. realise international the level the especially on community, on of obligation this places some developing the to and poor nations with co-operate and assist developed and wealthy nations 21 ESCR Committee The the rights also economic, social and cultural in the realisation of . in its General Comment 3 it that: have this emphasised to when suggested seemed "... in accordance with Articles 55 and 56 of the Charter of the United Nations, with law, international the the of and with provisions of principles well-established Covenant itself, international cooperation for development and thus for the States. is It is of all an obligation cultural rights social and economic, of realization in States in to incumbent those assist others which are a position upon particularly importance Declaration in Committee the the The of on particular notes this regard. in its 41/128 Assembly by Development the'General Right resolution to adopted the full for States the 1986 to take the December 4 account of all of parties need and of in It the that, therein. absence of an active emphasizes recognized principles those the international of all on part cooperation and assistance of programme States that are in a position to undertake one, the full realization of economic, social (emphasis in countries many and cultural rights will remain an unfulfilled aspiration 2 added).
19ibid, Par. 9. 2' ibid, Par. 4. 21Seee.g. Chile's argumentduring the drafting of the Covenantthat "international assistanceto under-developedcountries by Statesin the United Nations". E/CN.4/SR.1203, at become of commitments assumed result as a mandatory in had a sense (1995), 148. M. C. R., Craven, ibid., in (1962) at 10 Par. cited 342, 22 General Comment 3, Par. 14. See also the Committee's GC2 I-IRI\GEN\11Rev. I at 45 in E/1990/23.
on International Technical Assistance Measures; UN Doc.
213
Developed nations do not however, seem to accept that they are under a legal obligation international developing ICESCR to to the assistance provide nations or co-operate under for In the their view, while them of economic, social and realisation cultural rights. with developing nations may seek the assistance or co-operation of developed nations, they can in it legal They for the the right strict sense of word. as a make reference, claim example, not to the wording of Article 11 of the ICESCR which, in recognising the right of everyone to an international living, in is that that of also recognises co-operation standard regard adequate 23 States. free The full realisation of economic, social and cultural "based on consent" of depend States in developing duty humane tends therefore to the on an ethical and rights international States legal developed than rather any obligation on their part. of volition Ethical and religious values can therefore give the legal obligations under the Covenant a human face that will contribute to the effective realisation of those rights, especially in developing nations. From an Islamic legal perspective, the Shari 'ah places both a moral and legal obligation individuals. the Limitation State to economic, social and cultural the ensure welfare of of on for be by the State. the the the an excuse neglect of not welfare of should people resources Under Islamic law, the State must always sincerely strive to ensure the people's welfare Qur'anic is for The here its State the to resources. general principle available wealthy within 24 its State its the to to means and poor according means, performed provide according intention do is best. is This the to and what with prudence consistent with the expeditiously, by "minimum ESCR Committee, is the to the core obligation" established of which principle effect that: "... a minimum core obligation to ensure the satisfaction of, at the very least, levels of each of the rights is incumbent upon every State party. essential minimum Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, or essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. 1125
There is nothing under the Shari 'ah that contradicts the above eagerness to oblige States parties to ensure the minimum possible enjoyment of economic, social and cultural rights As become face below, in the the sensitivity to the constraints. of resource will evident even injunctions of the Shari `ah had spurred the early Caliphs to fulfil the economic, social and 7' See Craven, M. C. R. (1995), supra, note 6 above, at 148-150. 24See e.g. Q 2: 236.
" GeneralComment 3, Par. 10.
214
in difficult its State in Islamic individuals the even very periods of early cultural rights of Article 2(1) of the international Also, the co-operation and under assistance history. notion of ICESCR is equally tenable under the Qur'anic principle of co-operation for the realisation of 26 Islamic law thus generally accommodates the obligations undertaken by being. human well States Parties under Article 2 for the realisation of the rights recognised under the ICESCR. More
below, from become their the analyses are well evident rights, as will so when
legislative State `ah. Parties Shari The the the of obligation provisions of substantiable within in Article have 2(2) in Article 2(1) the already of non-discrimination obligation and reflected been addressed in the last chapter.
THE RIGHT
TO WORK
Article 6 1.
The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
2.
The steps to be taken by a State Party to the present Covenant to achieve the full include technical and vocational guidance and training this shall of right realization programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.
Work is traditionally recognised as the legitimate means of earning a livelihood in every is "an has Sieghart that thus work essential part of the out rightly pointed human society. 27 It is through work that a dignified source of income is often guaranteed human condition. harmonious development individual his being a and of of an personality well the material and is dignity in labour" "there fact The that the be substantiates saying popular realised. may dignity individual. is fundamental to the the the to maintenance of of work that the right integral "an to the maintenance of the 6 work as element therefore of value Article recognises 28 individual". the dignity of self-respect and the While the intendment of Article 6 may not be to guarantee full employment and total it (as States States the may argue), places an obligation on unemployment of elimination for least the of work to opportunity everyone who wants to work and provide parties at
26 See Q 5: 2. 27 Sieghart, P., The Lawful Rights of Mankind: An Introduction to the International 123.
Legal Code of Human Rights (1986)
Craven, M. C.R., (1995) supra, note 6 above,at 194.
215
29 Also, Article the to 6(1) the while of unemployment. right channels work under narrow is be the case with most of the rights recognised to realisation, as progressive subject may Article Article 6(2), 2(1), ICESCR, the read with as provides that certain steps must under be taken by the States Parties to achieve the full realisation of the right. Such steps, which include "technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive fundamental freedoms to conditions safeguarding political under and economic employment the individual",
are very demanding for many developing nations and are obligations of
depending be time to take that some achieved, on available resources. may result The wording of Article 6(1) indicates that the recognition of the right to work includes freedom of choice of employment by everyone. This excludes forced labour or forced 30Article 6 individual. however by any would upon not accommodate a choice employment "trade" legally by "work" State. Drzewicki has individual the or of prohibited also pointed an in freedom be limited by "provisions the to designed the that to of choice right work may out from in persons, such as women, children and young persons, vulnerable working prevent "31 Conversely, Articles Article 2(2) 3 ICESCR the and of conditions. would prohibit certain legislation or practice that inhibits certain groups such as women, the 32 from include disabled Other be the this to employment. aspects of right or right not elderly 33 from dismissed work. arbitrarily The right to work and dignity of labour is fully recognised under Islamic law. This is
discriminatory any
Qur'an by Sunnah by Prophet the the Muhammad the verses of that and many of evidenced 34 labour For Qur'an the God the that of and work. example value states categorically extol 35 daytime for (through by humans, the seeking sustenance has ordained work) and has also
29SeeArt. 23(1) of the UDHR which provides that "Everyone has the right to work and protection against ... unemployment". 30Art. 8(3)(a) of the ICCPR provides that "No one shall be required to perform forced or compulsory labour". Seealso Art. I of the ILO Abolition of Forced Labour Convention No. 105 of 1957. SeeILO Treaty Website at: htm [18/2/2001]. http: //ilolex. ilo. ch: 1567/public/english/docs/convdisn. 31e.g. ILO Convention No. 45 prohibiting undergroundwork for women and ILO ConventionsNos 5,10,33,59,60,123 for admissionto employment.SeeDrzewicki, K., "The Right to Work and Rights in Work", in age minimum concerning (ed. ) Rosas, A., Economic, Social and Cultural Rights: A Textbook(1995) p. 169 at179. C., Krause, A., and Eide, 32For example,agitation about the discriminatory effects of the ILO Convention No. 89 of 1948,which excludedwomen from night work, led the ILO to adopt a Protocol in 1990amendingthe earlier provisions of Convention No. 89. See Drzewicki, K., (1995) ibid. 33Seegenerally Craven,M. C.R., (1995) supra, note 6 above,pp. 194-225for a detailed discussion of the right to work in the ICESCR. the of context 34See e.g. al-Ghazäli, M., Huqüq al-Insän Bayn T'älIm al-Islam Wa I'Idn al-Umam al-Mutahidah (Arabic)(I 993) pp. 177203; Al-Zuhayli, W., (1997) supra, note 34 above, Vol. 7, pp. 4986-4989 and Uthman, M. F., Huquq al-Insän Bayn alShar? 'ah al-Islämiyyah Wa al-Fikr al-Qänüniy al-Garbiyy (Arabic) (1982) pp. 151-155; where the authors discuss many dignity Traditions Prophetic on of labour and work in Islamic law. and Qur'anic verses
31SeeQ 78: 11.
216
36 himself lawful. The Prophet dignity labour both the trading set many examples on of made in deeds and words. In one Tradition he is reported to have said: "There is no better way of labour hands, because Prophet David the the through than of one's own even used sustenance in his hands. "37 And labour from feed the answer to a question put to him as to of own to Prophet best "... best the that: the the of sustenance gave a similar answer means was which 38 hands is labour lawful , He through through the trade. of your own or sustenance of means it is dignifying better in Tradition that and another also stated living
for an individual to earn a 39 fire-wood begging. The Prophet himself is by cutting and selling than through
for his livelihood. have to worked recorded It is clear from the above Traditions that Islam discourages begging and dependence labour for but State The encourages and working rather one's sustenance. upon others individual duty law Islamic has to the to work, and in under respect right of every a therefore fact encourage them to do so. The duty of the State to recognise the right to work and to take for individuals from the the to provision of opportunity work and protection of ensure steps inferred by Muslim scholars from a precedent laid by Prophet is often unemployment Muhammad when a man came to him begging for alms. The Prophet asked the man to bring house, he for his He from two then gave the coins to the items sold silver which coins. two buy an axe with the other feed his family him the to instructing to of coins and with one rnan fixed a handle to the axe and gave it to the man saying: "Go, cut wood and Prophet The coin. for fifteen days. back " did The he do to it, told me man come as not was and and sell Prophet having earned up to ten silver coins from few days' work, the to thereafter returned his from his fulfil labour. The Prophet to then needs conveniently own able advised was and him that this was better and more dignifying for him than begging. Based on this precedent State during Islam, his time, Chaudhry concluded the Prophet as an embodiment of of the of is, State its if "Islamic thus, to to they have responsible provide the employment citizens that 40 livelihood". Al-Zuhayli to their occupation earn or reached the same no employment both Tradition] by Tradition in to this and also'through reference another which conclusion
36SeeQ 2:275. 37Reported by al-Bukhäri, Seee.g. Karim, F., Al-Hadis, An English Translation and Commentaryof Mishkat-ul-Masabih With Arabic Text,3rdEd. (1994) Vol. 1, p.403, Hadith No. 109. ;$ Reported by Ahmad, SeeKarim, F., ibid, p.406, Hadith No. 131w. 39Reported by al-Bukhäri, Seee.g. Karim, F., (1994) ibid, Hadith No. 108. 40 Chaudhry, M. S., Islam's Charter of Fundamental Rights and Civil Liberties (1995) 41. See also Uthmän, F., (1982) Karim, F., 37 above, p. 401, Hadith No. 107. 153. 34 note supra, p. and above, note supra,
41SeeAl-Zuhayli, W.,(1997) supra, note 34 above, Vol. 7 p.5010.
217
the Prophet stated that the ruler (i. e. State) is like a shepherd over the people and is thus 2 for the affairs of the people. responsible
Scholarsalso argue from the facts of the above precedent of the Prophet that there is a individual duty has do to the to work on every who capacity so under Islamic corresponding law. As is the case under Article 6 of the ICESCR this corresponding duty to work would not is forced labour, by the Qur'an the the prohibition of which evidenced verse of accommodate that says: "God does not burden a person beyond his scope... "43 Tabandeh has also cited a Caliph, ibn fourth Ali Abi Tälib forced labour has to the that show of no place precedent law. One Caliph have Islamic the the to of governors under was reported requested the under Caliph's permission to force people to work for the repair of a canal to improve the flow of for The Caliph in have "I the to agricultural purposes. province was reported replied: water do he has do. to If the stream to a single person any work compel not a mind never would in describe, invite do its the the to the work needed condition you are people canal and them every encouragement, promising that the water of the stream shall and give voluntarily, it, but be did the that property of anyone who worked on such people as not work afterwards in its "44 lot have nor portion water. neither shall Under Islamic law, the rights of the individual to do any work which he freely chooses include "work" by Shari the to `ah such the right choose any will not prohibited accepts and business. These "work" usury and alcohol gambling, are all prohibited under prostitution, as Islamic
law and are considered as detrimental to both the ultimate well being of the
individual and that of society at large. It is on that basis for example, that Article 14 of the OIC Cairo Declaration while providing that "Everyone shall have the right to legitimate deceit harm to "Usury to that or monopolization, oneself or others", added without also gains (riba) is absolutely prohibited". As earlier argued above, Article 6 of the ICESCR does not from prohibiting State to a restrain seem
certain types of work considered to be against
is long discriminatory does inhibit interest as such prohibition not as and not certain public legitimate from work. groups Regarding non-discrimination in the right to work, the right of women under Islamic law becomes their freely work or accept of own choice choose relevant. For instance, the to ESCR Committee expressed concern in its concluding observations on the initial report of
42Seeibid, p.4989. The Tradition in referencehere is further discussedmore elaboratelybelow under the right to social below. 229 p. security,
43 Q 2: 286. 44Tabandeh, S., A Muslim Commentary on the Universal Declaration of Human Rights (1970) 77. See also Chapter 4, pp. 59-61 and 142-143 above on the prohibition of slavery.
218
in from 1993 Iran Republic the Islamic at prohibition of women magisterial of the 45 The 2000 report of the Special Representative on the situation in Iran of appointments . human rights in the Islamic Republic of Iran also questioned the requirement in the Iranian Civil Code for "women to obtain the permission of their husbands to take jobs. "46. The report however acknowledged that "the provision is widely disregarded and can... be circumscribed by a suitable provision in a marriage contract". The Representative of the Islamic Republic of Iran had in his answer to questions on the issue at the 8th Session of the ESCR Committee had been "a being text to the the that submitted and corrected was situation stated 47 in that regard. Government" Under traditional Islamic jurisprudence, jurists hold different opinions on the question of jurists judges. While the traditional a majority of excluded women as appointing women from the bench, Imam Abü Hanifah, held the view that a woman can be appointed as a judge in civil matters. Other jurists like Ibn Jar1r al-Tabari and Ibn Hazm however held the view in judge her be all cases as male counterpart. al-Tabarl's as a appointed that a woman can jurisconsult (mufti) be then that appointed as a a woman could since she can was argument in last judge. have is We the be that there pointed out earlier chapter as a appointed equally Prophet Qur'an Tradition the that the the of specifically a prohibits nor of verse a neither Shariat judges. basis, Federal Court On Pakistan the that of when as women of appointment faced with this question in the case of Ansar Burney v Federation of Pakistan48 in 1982, held judges law. Islamic The be as under court preferred the views of appointed that women could jurists from being Hazm that Ibn to who exclude women of other appointed as al-Tabari and judges. Generally, one finds nothing within the Qur'an and Sunnah that specifically excludes doing their they from the of choice provided any work possess required skills and women 49 hazards As in last therefrom. to the any stated exposed chapter, the are not and expertise Shari `ah recognises the independence of women within basic moral and ethical rules that Muslim Most the that to scholars contemporary support view men. women apply equally in discriminated legally to the be For right against work and choice of profession. may not instance, Hamidullah has observed that:
45SeeConcluding Observationson Islamic Republic of Iran, (1993), UN. Doc. E/C. 12/1993/7.Par. 6. °b UN Doc. E/CN.4/2000/35of 18`"January2000, Par. 22.
" See Summary Record of 8`hMeeting: Iran (Islamic Republic of) E/C. I2/I993/SR. 8 of 20/12/93 Par. 36 and 40. Seefurther Chapter 8 below.
48(1983) 65 PLD (FSC) 73. 49Seepp. 115-6 above.
219
"In every epoch of Islamic history, including the time of the Prophet, one sees Muslim women engaged in every profession that suited them. They worked as in by the teachers, side of men when necessary, as combatants and even nurses, lady, Caliph `Umar hair-dressers, being to cooks, etc. employed a singers, addition Shifa' bint `Abdullah as inspector in the market at the capital (Madinah) as Ibn Hajar (Isabah) records. The same lady had taught Hafsah, wife of the Prophet, how to being judges jurists The the of women appointed as possibility admit write and read. brief, far from becoming kind. In the there tribunals, of examples are several and of her in Muslim to society, men, earn with a parasite, a woman could collaborate so develop her talents" livelihood
and to
Similarly Abdulati, has also statedthat: "Historical records, show that women participated in public life with the early Muslims, especially in times of emergencies. Women used to accompany the Muslim armies engaged in battles to nurse the wounded, prepare supplies, serve the behind iron bars They or considered worthless shut were not on. so and warrior, deprived Islam grants woman equal rights to contract, to of souls. and creatures s51 independently. to possess earn and enterprise,
Badawi, while also subscribing to the legal view that there is no decree in Islam which
forbids women from seekingemployment,addedthat: "with regard to the woman's right to seek employment it should be stated first that Islam regards her role in society as a mother and a wife as the most sacred and baby-sitters Neither can possibly take the mother's place as maids nor one. essential the educator of an upright, complex free, and carefully-reared children (sic). Such a future be largely the of nations, cannot regarded as which shapes role, vital noble and "idleness". s52
Badawi's
Muslim a moral consideration upon which above expresses observation
from choosing any work capable of preventing them from discourage women scholars is Reciprocally, important the their as mothers and wives. man also prevented role fulfilling from choosing any work capable of preventing him from fulfilling
his role as a father or
husband. It is upon the same basis that both spouses may confer not only on choice of work
it is family Ideally the not a question of consent or relationship. but on all aspects of interest in family. best between In a the but the the of couple agreement mutual permission legal sense, the right to work and to freely choose or accept work of one's Islamic strict Shari `ah the the is provisions of within and general sustainable principles much very choice
5' Hamidullah, M., Introduction to Islam (1982)p.139. 51Abdulati, H., Islam in Focus (1997) 364-5; Seealso generally Badawi, J., "The Statusof Woman In Islam" (1971) 8 Al33. September, 2, No. p. Ittihad, 52Badawi, J. A., ibid.
220
female is both discrimination. law, to the Islamic male and gender without and applicable of Article 12 of the OIC Cairo Declaration thus provides that: "Work is a right guaranteed by the State and society for each person able to work. Everyone shall be free to choose the work that suits him best and which serves his interests and those of society. The employee shall have the right to safety and He be to social as all other guarantees. may neither assigned work as well security beyond his capacity nor be subjected to compulsion or exploited or harmed in any 53 way.,,
In that regard most Muslim States need to redress the misconception about the right of
in both in their that the to and security also ensure safety respect and work private women and public sectorsof society.
THE RIGHT
TO JUST AND FAVOURABLE
CONDITIONS
OF WORK
Article 7 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions inferior to those enjoyed by men, with equal pay for equal work;
of work not
(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;
(b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;
(d) Rest, leisure and reasonablelimitation of working hours and periodic holidays with pay, for holidays public remuneration as as well
If the individual is not to be exploited in the enjoyment of his right to work, and if work is to fulfil its role as a crucial source of income upon which the material well being and the individual's development the of personality depends, then the right to work must harmonious be enjoyable under some minimum favourable and just conditions. As stated earlier, labour is but must be linked with human dignity. Thus be merely as a commodity to considered not for the right to work, Articles 7 and 8 provide for rights in work. " 6 Article provides while
53Note that the pronouns"he", "his" and "him" are generically used for both male and female throughout the Declaration. SdSeee.g. Craven,M. C.R., (1995) supra, note 6 above,pp.226-247 for elaborateanalysisof theseprovisions.
221
The reporting guidelines formulated by the ESCR Committee in respect of Article 7 55 Conventions International Labour Organisation to the (ILO). That of some make reference is because the precedent of recognising the right to just and favourable conditions of work had been laid earlier by the ILO
through the adoption of many Conventions
and
Recommendations such as: Hours of Work (Industry) Convention (No-1) of 1919; Weekly Rest (Industry) Convention (No. 14) of 1921; Minimum Wage-Fixing Machinery Convention (No. 26) of 1928 and (No. 131) of 1970; Weekly Rest (Commerce and Offices) Convention (No. 106) of 1957; Equal Remuneration Convention (No. 100) of 1951; Safety Provisions (Building)
Convention of 1937; Holidays With
Pay Convention (No. 52) of 1936 and
(No. 132) of 1970.56 This early formal recognition of rights in work by the ILO arose from Europe First World War that the swept across after unrest and the appreciation revolutionary between labour justice "interdependence the conditions, social and universal peace.s57By of in full-fledged human rights, the individual worker these rights work as the establishment of is depicted as a subject and not an object of labour under the Covenant. As clearly stated in Article 7, fair the the of rights work mainly aims provision at ensuring wages, under decent living, safety at work, equal treatment and adequate rest and leisure for every worker, dignity human being. to the the enhance of working contribute all which Although the right to just and favourable conditions of work has not been specifically itemised law, it is Islamic traditional such as under and very much sustainable and codified Shari `ah. The Shari injunctions `ah the the provisions of within on nonrecognised humane treatment basis t. in the of peers and equity, underlings e. c., provide exploitation, Islamic law for, in the words of Qadri, "social controls and administrative techniques for the labour hours security, wages of social and of work together with the rules on welfare, general 58 For example the Qur'an provides that: the the employees and employers". the relations of "Woe to those who give less in measureand weight. Those who, when they receive from Men demand full measure;But when they have to give by measureor weight, due. s59 less than give
55SeeRevisedGuidelines,supra, note 7 above,Art. 7(1).
56Many of the modem Muslim States have ratified these and other ILO Conventions. Of the 6 countries used for case Iran has not yet ratified any of the ILO Conventions cited as example here. See the ILO Treaty in this only research, studies Website for these and similar Conventions and their status of ratification at: http: //ilolex. ilo. ch: 1567/public/english/docs/convdisp. htm [visited 18/2/2001]. 57Drzewicki, K., (1995) supra, note 31 above, p. 169. For e.g. the 2"d preambular paragraph of the ILO Constitution "conditions of labour involving such injustice, hardship and privation to large the of capability numbers of recognised harmony that the imperilled. the " See ILO Treaty Website: so great peace and to unrest of produce word are as people httn"! /www ilo. ore/public/enelish/about/iloconst. htm for the ILO Constitution [18/2/2001]. 51Qadri, A. A., Islamic Jurisprudence in the Modern World (1986) p. 306. 59Q 83: 1-3.
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"... Give just measureand weight, and do not withhold from people things that are their due and do not do mischief on earth after its perfection, that is best for you if you had faith."bo The above verses serve as basis for fair trade, fair and equitable wages for workers as law. injunctions for Islamic The here value under work of equal remuneration equal well as in labour There fairness Prophetic transactions for generally. are also many and equity are Traditions
that specifically encourage equity and fairness in wages of workers.
In one
Tradition the Prophet is reported to have enjoined that: "When anyone of you hires a worker 61, in he his him inform he should and another enjoined that the employee should of wages" 62 labour dries his before the sweat of out. The Prophet also warned be paid his or her wages be displeased God hereafter in the with an employer who engaged an employee would that 63 him his fair Another labour but failed Tradition full his to wages. pay which and enjoyed brings fortunes bad "Good their treatment one's control of persons under while says: treatment
brings misfortune"64 reflects the wisdom that ensuring just and favourable
in improves being increases the of workers which return well productivity conditions of work large. The Prophet thus generally enjoined fortunes to the brings at employer and society and Correlative humane treatment to the right employees and workers. of servants, the good and is his duty favourable fair discharge to to conditions working also the wage and a worker of his contract properly and justly. The Qur'anic rule in employer/employee and human 65 be dealt is "Deal that not unjustly and you shall not with unjustly". relationships generally The Prophet is also reported to have stated that: "God loves to see that when someone does 66 From the above provisions it does he Weeramantry perfectly". and principles, some work has correctly identified that under Islamic law "work (is) looked upon more as a partnership between employer and employee than as a relationship of superiority and subordination" and implement fair "right the to to the contract obligation the wage and of employer's a that 67 in doctrine. , ingrained Islamic justly are deeply The recognition of rest and leisure in relation to work under Islamic law is evidenced in have "We for that Quranic states made your sleep which rest ... And made the day verses the
60Q 7:85. Reported by al-Bayhagi, Seeal-Shawkäni,M., Nay! al-Awtär (Arabic) (n.d.)Vol. 5-6, p.292-3. 62Reported by Ibn Majah, Seee.g. Karim, F., (1994) supra, note 37 above,Vol. 2, p.301, Hadith No. 6. 63Reported by al-Bukhäri, Seee.g Karim, F., (1994) ibid, p.299, Hadith No. 3. " Reported by AbO Däwud, See e.g. Karim, F., ibid, Vol 1, p. 228, Hadith No. 96. 6s Q2: 27966 Reported By al-Bayhägi. See e.g. AI-Zuhayli, W., (1997) supra, note 34 above, Vol. 7., p. 5011. 67Weeramantry, C. G., Islamic Jurisprudence: An International Perspective (1988) pp. 63 and 64.
223
68 Over-working (seeking) lack leisure without subsistence". of rest and of means a as is in detrimental is This to which stress and weakness, workers. results prohibited certainly Qur'anic let "... be (between there the transactions the says: of verse which provision within 69 kill (or destroy) do The Prophet had by not good will, and yourselves.. mutual also you) .,, 70 has human body leisure be that the that a right of rest and must respected. admonished Tabandeh has, in that regard, referred to an Islamic Tradition which recommends the division day into hours for hours "viz: 8 8 for hours food 24 three the of periods work; a worship, of demonstration hours for 8 Islam's the sleep and repose" as a of recognition of recreation; and 71 hours. limitation leisure of working and reasonable right to rest, Islamic law thus fully recognises and strongly encourages the right of everyone to enjoy just and favourable conditions of work as provided under Article 7 without discrimination of in is Article OIC Cairo 13 Declaration This kind. the that: of acknowledged any "... The employee shall have the right to safety and security as well as to all other beyond He be his may neither assigned work guarantees. capacity nor be social harmed in to compulsion or exploited or any way. He shall be entitled subjected females between fair discrimination for his to any males and wages without work without delay, as well as to the holidays allowances and promotions which he deserves. For his part, he shall be required to be dedicated and meticulous in his work. "
The provisions on the rights and duties of the employee apply to both the private and in labour. Based Tradition described Prophet the the (i. the of on which sectors ruler e. public is for "shepherd" being the the affairs of the "flock" (i. e. the that State) responsible as the has duty law Islamic State the to that the the ensure under right of everyone to enjoy people), just and favourable conditions of work are ensured both in the private and public sectors of labour. The State may enact legislation and create institutions through which the rights of institution be For is important the example, called ensured. public can al-hisbah an workers for law (i. is in Islamic the officer under which e. public muhtasib order) conferred with organ labour jurisdiction inter investigate to, trade broad monitor control alia, and and standards, a disputes fair in labour trade, the welfare and rights and generally ensure practices trade and 72 labourers Islamic law. This under and strongly complements the obligation of of consumers
6S Q 78: 9-11.
69Q 4:29.
70 Reported By a]-Bukhari and Muslim, See Karim, F., (1994) supra, note 37 above, Vol. ], p. 431-432, Hadith No. 146. 71See Tabandeh, S., A Muslim Commentary on the Universal Declaration of Human Rights, (1970) p. 78. 72See e.g. al-Mäwardi, A., al-Ahkam as-Sultaniyyah, The Laws of Islamic Governance, Trans. Yate, A., (1996) p. 33711.
224
Muslim States under the Covenant to ensure that the rights of employees are fully guaranteed both in the private and public sector.
TRADE UNION RIGHTS Article 1.
8
The States Parties to the present Covenant undertake to ensure: (a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; (b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations; (c) The right of trade unions to function freely subject to no limitations other than those in democratic in by law interests the are necessary a society and which of prescribed national security or public order or for the protection of the rights and freedoms of others; (d) The right to strike, provided that it is exercised in conformity particular country.
with the laws of the
2.
This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.
3.
Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.
The recognition of the right of all workers to just and favourable conditions of work does not often come easy and must sometimes be negotiated and pressed for 7 Article under has observed that although "work continues to be an essential part of Sieghart collectively. it be "continues for the to the human one of most persistent also occasions condition" the by "73 beings kind. Trade unions are thus essentially meant human their own of exploitation for the promotion and protection of the economic and social interests of workers. During the drafting of the Covenant, the Lebanese and Pakistani representatives emphasised that trade instrument for implementing "necessary a economic, social and cultural were union rights 74 in is important "satisfactory It to that the working conditions particular". note and rights" 13 Sieghart, P.,(1986) supra, note 27 above.
74SeeMalik (Lebanon) E/CN.4/SR.298, at 8 (1952); and Chaudhury (Pakistan),A/C. 3/SR.719 at 199, par. 19 (1956) cited 6 250. (1995) C. R., M. note above, p. supra, Craven, in
225
States Parties do not merely recognise the right to form and join trade unions but undertake in Article 8 to ensure this right. The obligation here is therefore seen to require positive 75 is immediate The ESCR Committee has and not progressive. observed that this action, Article was capable of immediate application and that any suggestion to the contrary would 76 be difficult to sustain. While, like the general right to freedom of association guaranteed under Article 22 of the ICCPR, everyone is free under Article 8 of the ICESCR "to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned", the inclusion that trade unions are "for the promotion and protection of (workers) economic and 77 from being interests" instruments. tends to trade restrict unions used as political social Article 8(2) also allows the State to impose lawful restrictions on the trade union rights of forces, the police and members of the administration of State. the armed of members There are no direct provisions on trade unionism within the Shari `ah. The Qur'an however enjoins co-operation (ta `äwun) - and thus organisation - for good purposes (al-birr) 78 There is no for form join the to trade unions or causes. also provision right or and common in OIC freedom Cairo Declaration. That leaves a big gap to be the to of association the right filled in respect of those rights. Article 13 of the Declaration only provides that: "... Should workers and employers disagree on any matter, the State shall intervene to dispute have the grievances redressed, the rights confirmed and justice the and settle bias. " without enforced
While the above provision appreciates the possibility of disagreement between workers and legal basis it fails for formation to the formally trade that provide a of unions can employers, interests. to their If promote and the argument protect economic workers and social represent is that the State has a duty under Islamic law to intervene and protect the confirmed rights of instances, is, in hardly the be guaranteed where the that this problem with such can workers itself. is is State Where there the no opportunity of unionism, workers would then employer have to pursue their rights in work on an individual basis, which then denies them the benefit in collectivity. and strength Nevertheless protection 8(l)(a)
nothing
in the Shari `ah prohibits
trade unionism
for the promotion
of the economic and social interests of workers as specifically
of the ICESCR.
Kamali
has argued that both the Qur'an
and
indicated in Article
and Sunnah "enjoin
co-
75Seee.g. Craven,M.C.R., (1995)supra,note6 above,p.251. 76SeeGeneralComment3 Par. 5.
77See Craven, M. C. R., (1995) supra, note 6 above, p. 254.
226
in "co-operation in beneficial that (ta `äwun) good work", and stressed good and operation beneficial forms is broad to (al-birr) co-operation, all of apply can which concept a work ... whether in the form of a political party, a professional association, or a workers' union which "79 Considering in fair treatment the trade of workers. equitable and practices aims at ensuring the tendency of exploitation that often exists in the employer-employee relationships all over the world today, the right of trade unionism for the purpose of promoting and protecting the law. As Islamic is legitimate interests earlier under very of workers economic and social indicated above, the Prophet of Islam has in many ways enjoined the welfare of workers. It is in is individual fact the that the every employer-employee weaker party always worker a be is truly It that the through trade of workers welfare may unionism only relationship. interest the the within capitalist especially protected, adequately of employees and realised Since States Muslim in the that world. modern modern parts of exists most oriented economy inconsistent be it Islamic in the the with will economy, capitalist oriented participate injunction of fair-dealing not to allow the formation of trade unions to protect the interest of from Apart the confrontational tendencies employers. of workers against any exploitative for the social, they trade trait often associated with also are necessary vehicles unions, internationally, both interaction and which nationally of workers cultural and professional in improving long their productivity. way goes a Many
Muslim
States have ratified
the ILO
Convention
No.
87 on Freedom
of
Convention (1948)80 No. 98 Right to Organise Protection Right the to and and of 81 (1949), Organise and Collective Bargaining Convention which are the two key trade union
Association
Conventions.
It is important to note in this regard that the States have an important obligation
to ensure that the rights of workers to form trade unions and join trade unions of their choice State. both the the of sectors private within public and ensured are
THE RIGHT TO SOCIAL SECURITY AND SOCIAL INSURANCE
Article 9 The States Parties to the present Covenant recognize including social insurance.
the right of everyone to social security,
78See also under Art. 22 of the ICCPR in the last Chapter, p. 171 above. 79Karnali, M. H., Freedom of Expression in Islam (1997) p.79. 8034 of the 56 Member States of the OIC have ratified this ILO Convention. See ILO Treaty Website at: http: //ilolex. ilo. ch: 1567/scripts/convde. pl? query=C87&query0=87&submit=Display [visited 4/2/2001). 8141 of the 56 Member States of the OIC have ratified this ILO Convention. See ibid.
227
Apart from the general statement that social security includes social insurance, the scope and nature of social security is not defined under the Covenant. Article 22 of the UDHR also provides that: "Everyone, as a member of society, has the right to social security and is entitled
to realization, through national effort
and international
co-operation and in
accordance with the organization and resources of each State, of the economic, social and indispensable for his dignity and the free development of his personality", but cultural rights fails to define the scope of social and economic rights indispensable for the dignity and free development of the individual. The reporting guidelines for Article however refer to the ILO Social Security (Minimum
9 of the ICESCR
Standards) Convention (No. 102) of
195282and also request each State Party to indicate which of the following branches of social security existed in their country, viz: Medical care; Cash sickness benefits; Maternity benefits; Old-age benefits; Invalidity
benefits; Survivors' benefits; Employment injury
benefits; Unemployment benefits; and Family benefits. 83 This list clearly indicates that the social security system is meant to be an alleviative arrangement for ensuring a guaranteed income and basic sustenance from the State to "labour inactive" members of society who may for obvious reasons not be able to earn income or sustenance through work. This in essence is aimed at protecting the dignity of the individual in such situations and prevent him from having to engage in the undignified act of begging or resorting to other degrading and unacceptable means of sustenance. Scheinin has noted that "(i)n developing countries, the economic protection of other, `inactive', persons may be seen more as a moral duty of the family than as a legal right of the individual in relation to public authorities. " He however argued that "(t)he place of the right to life in the international code of human rights certainly puts limits on leaving the responsibility of the basic well-being of the members of society to families. i84 While Scheinin's observation in respect of the concept of social security in developing countries describes what one finds as well today in all modern Muslim States, there are precedents in early Islamic State practice where responsibility for the basic well-being of everyone and especially the economic protection of labour inactive persons was taken as an obligation of the State.
82See ILO Website at: http: //ilolex ilo. [02/02/2001]. ch: 1567/scripts/convde iI? query=C102&gueryO=102&subniit=Display 83These are exactly the nine specific branches of Social Security covered by the ILO Social Security (Minimum Standard) Convention (No. 102) of 1952. See Revised Guidelines, supra, note 7 above. 84Scheinin, M., "The Right to Social Security", in Eide, A., Krause, C., and Rosas, A., (ed.) (1995) supra, note 31 above, p. 59 at 161.
228
The Shari `ah in fact enjoins the concept of social security as a State policy rather than family is, for The Zakät tax a responsibility. example, an obligatory State institution purely basically for ensuring the social security of indigent individuals within the Islamic State. The State has the legal responsibility of collecting the Zakät which must only be expended for the indigent category of persons to ensure their social security within the State. Apart specific from that, the State itself has a primary responsibility under the Shari `ah, to provide members of the society with the economic and material welfare "necessary for the 85 human happiness dignity". This is evidenced by the oft-quoted maintenance of and Tradition of Prophet Muhammad in which he says: "Behold, every one of you is a shepherd; and everyone of you is responsible for his flock. The ruler (i. e. the State) that governs over a people is a shepherd, and is responsible for his flock (i. e. the people); The man is a shepherd over his family and is responsible for his flock; The woman is a shepherdess over her husband's household and children, and is responsible for them; The servant is a shepherd over his master's property, and is responsible for it. Behold, everyone of you is a shepherd, and everyone of you is responsible for his flock. s86
Analysing the above Tradition, Muhammad Asad has pointed out the need to note that the ruler's (i. e. the State's) responsibility to the people "has been put at par with a father's or a mother's responsibility toward their children".
Just as the father and mother are
"shepherds" and are morally and legally responsible for the well being of their family, the State is also morally and legally responsible for the economic and social well-being of its people. "It follows, therefore, " Asad concluded, "that a state, in order to be truly Islamic, must arrange the affairs of the community in such a way that every individual, man and woman shall enjoy that minimum of material well-being without which there can be no human dignity, no freedom and, in the last resort, no spiritual progress. ,87 There are numerous recorded precedents of social security arrangements for the welfare inactive labour the of Hamidullah
members in the history
of the early Islamic
State. For example,
(quoting the great 8th century Hanafi Jurist, Imam Abü Yüsuf), has documented
the position in his well-known
work, The Muslim
Conduct of State, first published in 1941,
as follows: "Social security in favour of non-Muslim subjects, at the expense of the Central Exchequer, was introduced as early as the time of Abü Bakr. In a State document, the commander, Khälid ibn al-Walid informs the Caliph of the conquest of the city of 85See Asad, M., The Principles of State and Government in Islam (1980) p. 87. 86Reported by al-Bukhäri and Muslim, See e.g. Karim, F., (1994), supra, note 37 above, Vol. 2, p. 567, Hadith No. 1. 87Asad, M, (1980) supra, note 85 above, at 88.
229
On They "I thousand. the were seven male population. counted says: al-Hirah, and further examination, I found that one thousand of them were permanently sick and invalid. So I excluded them from the imposition of the jizyah (tax); and those have I thousand... the tax thus accorded them that any six remained susceptible of for his livelihood his weakness, or who should old man who could no more earn but became by be was rich poor to the one who or a calamity, afflicted otherwise him from I his he the that shall exonerate co-religionists, of charity requires extent the jizyah (tax) and he and his family will be supported by the Muslim treasury so long as he lives in the Islamic territory... 1188
The second Caliph, `Umar ibn al-Khatäb, also laid a formal precedent in that respect by demonstrating clearly during his rule that the State has an obligation under the Shari ah to the the that especially of the society, of every member of security and welfare social ensure "labour inactive" along the lines envisaged under Article 9 of the ICESCR. `Umar is be his Caliphate during issued instructions that formal have to grants must provided recorded from the State treasury (bayt al-mä1) to the elderly and to the sick in the State without discrimination. Abü Yüsuf has documented in his Kitäb Kharäj that the Caliph Umar once "passed along a street where somebody was asking for charity. He was old and blind. `Umar A He from behind From thou? his art replied: community tapped which shoulder and said: Jew. He said: And what hath constrained thee to what I see thee in? He replied; I have to pay the capitation tax: I am poor; and I am old. At this `Umar took him by the hand and led him to his own house and gave him something from his private coffers. Then he sent word to the his like. God! him By We baytu'1 (State Treasury): Look the should and at mal cashier of in `The deserted leave him if justice doing his the be old age. and we out of youth eat never 89 is " Al-Balädhuri indigent. for the the taxes also quoted to are meant poor and government have recorded that when Umar came to a city called al-Jäbiyah "he passed en route by some Christians suffering from leprosy, so he gave order that they should be aided out of sadagät, i. e. zakät, and that they should be given a life pension.i90 Describing the precedent of Caliph Umar in respect of the formal inauguration of the concept of social security in the early Islamic State, Muhammad Asad observed exhaustively as follows: "If some readers suppose that the idea of... a social insurance scheme is an invention of the twentieth century, I would remind them of the fact that it was in full swing many centuries before its present name was coined, and even before the need for it became apparent under the impact of modern industrial civilization: namely, in the 88Hamidullah, M., The Muslin: Conduct of State, (7`h Revised Ed., 1977) p. 117, Par. 211. See also Abü Yüsuf s Kitdb alKharaj, Trans. Ali, A. A., (1979) pp. 289-90. 89ibid, pp. 113-114. 90al-Balädhuri, Futüh al-Buldän, (Arabic) p. 129, cited in Hamidullah, M., (1977) supra, note 88 above, p. 114.
230
Islamic Commonwealth, at the time of the Right-Guided Caliphs. It was `Umar the Great who, in the year 20A. H., (643CE) inaugurated a special government department, called diwän, for the purpose of holding a census of the population at regular intervals. On the basis of this census, annual state pensions were fixed for (a) widows and orphans, (b) all persons who had been in the forefront of the struggle for Islam during the lifetime of the Prophet, beginning with his widows, the survivors of the Battle of Badr, the early muhäjirs, and so forth, and (c) all disabled, sick and old persons. The minimum pension payable under this scheme amounted to two hundred and fifty dirhams annually. In time, a regular allowance, payable to their parents or guardians, was settled even on children (on the principle that they were unable to fend for themselves) from the moment of their birth to the time when they would during last his life, `Umar said more than once: "If the year of and maturity; reach God grants me life, I shall see to it that even the lonely shepherd in the mountains of San`ä' shall have his share in the wealth of the community. " With his characteristic issues, far `Umar the even went so as to make experiments with a practical grasp of finding to thirty out the minimum amount of food an people with a view group of average person needed to maintain full health and vigor; and on the conclusion of these experiments he ordained that every man and woman in the country should (in from the government storehouses addition to the monetary pension of receive be he for a monthly she might a recipient) allowance or of wheat sufficient which two square meals a day. s9'
Most Muslim States today hardly operate a full social security scheme in the manner Asad has 9 ICESCR. Article Muslim the thus to of posed a question under contemplated States, based on the precedent of `Umar narrated above, that: "Is it not our duty (i. e. the Muslim
States), with thirteen centuries (now fourteen) of historical
experience at our
disposal, to rectify that shameful negligence and to bring `Umar's work to completion? 902 is indicates that the scheme social security This clearly very much accommodated under Islamic law and in fact a strong obligation upon the Islamic State within available economic fund is specifically meant for that purpose as specifically The obligatory zakät resources. Qur'an. Thus if Muslim States can properly organise and utilise this by the enjoined important public institution, the social security system in the Muslim world would be greatly international Notably, human the challenges of enhanced. rights seem to spur and reformed into action in that respect. For instance, Libya in its initial report on the States Muslim some ICESCR, reiterated the importance of social security in promoting human welfare especially further stated that an important distinguishing feature of the inactive labour and persons of that: was scheme security social country's "It is an Islamic scheme founded on the modern scientific and organizational developed The the countries. underlying principles of the scheme were of experience inspired by the magnanimous Islamic Shari'a, which ensures social solidarity and
91Asad, M., (1980), supra, note 85 above, p. 92. ' ibid.
231
individual the of reform and the community based and promotes communal concern on justice, mercy and fellowship. s93
In a similar vein Morocco also stated in its second periodic report on the ICESCR that it intends a thorough reform of its social strategy to benefit the most deprived members of society and that the country's
"social strategy will be reinforced by a social development
fund and the establishment of a transparent mechanism for mobilizing the zakat. "94
As statedduring examination of the right to work above, the able-bodied individual has individual is law. The living duty Islamic to to to urged work earn a work under a correlative benefits from State. Islam discourages depend the totally he than on any can rather whenever form of parasitical or indolent way of life for the fit and able. The upper hand, (i. e. the giving hand) according to the Prophet, is always better than the lower hand (i. e. the receiving hand). The OIC Cairo Declaration contains no specific provision on right to social security and insurance. social
FAMILY
RIGHTS
Article 10 The States Parties to the present Covenant recognize that: 1.
The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent into free be Marriage the with entered consent of the intending must children. spouses.
2.
Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.
3.
Special measures of protection and assistance should be taken on behalf of all discrimination for reasons of parentage or any and young persons without children other conditions. Children and young persons should be protected from economic harmful in Their to their morals or health employment work social exploitation. and or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.
The recognition of the family as an important natural unit of society and its role in the individual be found in human instruments. development the For of can most rights positive identifies family Charter "the African the the as custodian of morals and traditional example,
93See Initial Report: Libyan Arab Jamahiriya (1996), UN Doc. E/1990/5/Add. 26, Par. 55(a).
94SeePar. 210 of SecondPeriodic Report: Morocco, UN Doc. E/1990/6/Add.20 of 9 January 1999.
232
by European Social Charter identifies the the the family and community"95 recognized values 96. Also Article (1) fundamental 17 American "a Convention on the society" unit of of as Human Rights, Article 16(3) of the UDHR and Article 23(1) of the ICCPR all recognise that "(t)he family is the natural and fundamental group unit of society and is entitled to protection by society and the State." It is in the same vein that Article 10(1) of the ICESCR not only recognises the family as "the natural and fundamental group unit of society", but also recognises it as "responsible for the care and education of dependent children. " There is however no treaty definition for the term "family"
in international human rights
law. This raises the problem of identifying which model or family structure would be entitled to the above protections by society and the State. Lagoutte and Amason have argued that instruments in family human "natural" to the almost all rights as a unit also refers reference to natural law, which they further argued, "is a direct translation of the anthropological 97Apart from the traditional kinship". theorization of classification of family into the nuclear family have in types, today new notions of emerged many societies other than extended and those based on natural and traditional heterosexual biological relations. There are today new like insemination, means artificial surrogacy and, more controversially, samereproductive "families" through which relationships sex
are formed.
The ESCR Committee has not
definition family ICESCR, but the specific of under any seems to appreciate the adopted in family its differences the concept of under reporting guidelines for Article of possibility 10. It requires States Parties to indicate in their report "what meaning is given in your society to the term `family'. "98 The HRC had also noted in its General Comment 19 issued in 1990 ICCPR 23 the that: Article of on "the concept of the family may differ in some respects from State to State, and even from region to region within a State, and that it is therefore not possible to give the concept a' standard definition. However, the Committee emphasizes that, when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in article 23. Consequently, States parties should report on how the concept and scope of the family is construed or defined in their own society and legal system."99
95Art. 18(2) African Charter of Human and Peoples' Rights (1981). 9' Art. 16 European Social Charter (1961). 97 Lagoutte, A., and Amason, A. T., "Article 16" in Alfredsson, G., and Eide, A., (ed.) The Universal Declaration of Human Rights: A Common Standard ofAchievement (1999) 324 at 338. 9s See Revised Guidelines, supra, note 7 above, Par. 2. '9 General Comment 19, Par. 2.
233
Also in the case of Shirin Aumeeruddy-Cziffra and 19 Other Mauritian Women v. 100 Mauritius the HRC had earlier observed inter alia that the "legal protection or measures that a society can afford to the family may vary from country to country and depend on 01 "' That view placed the different social, economic or cultural conditions and traditions. family both definition ICCPR ICESCR State the and of under upon of each and legal scope however further from has The HRC by in its that moved view concerned. observing system General Comment 28 issued in 2000 on Article 3 of the ICCPR that: "... in giving effect to the recognition of the family in the context of article 23 (of the ICCPR), it is important to accept the concept of the various forms of family, including unmarried couples and their children and single parents and their children and to ensure the equal treatment of women in these contexts... i102
Although this current broad interpretation of "family" by the HRC is said to be "in the it be 23" ICCPR, Article 10 the to of can equally relative of article of the ICESCR context due to the similarity in wording of both Articles on family. This broad interpretation is however contrary to the concept of family under Islamic law as will emerge below. Generally, the importance of the family and its protection is very well established under Islamic law. It is an important institution within Islamic society that is closely guarded, and family rights and duties are specifically defined under Islamic family law and jurisprudence 103 Every Muslim individual is encouraged to be familyfor its establishment and protection. in the to realisation of a socially stable society through the establishment assist and oriented Shari 'ah The both family. the State in also places responsibility on society stable and a of family the protecting respect of
institution.
There should therefore be no problem in
family the the protection and general assistance of recognised under the ICESCR reconciling is law The Prophet have in Islamic to principles. reported stated one Tradition that: with "The best of you are those who are best to their families and I am best to my family. " 104 The Tradition earlier cited under Article 9 above in which the Prophet described the ruler, the father and mother as shepherds in respect of the people and family respectively, also illustrates the recognition of the duty to protect and assist the family under Islamic law. There are also precedents of practical demonstration by the Prophet and the early Caliphs duty State's family, to him the the protect and support of especially its vulnerable after 10°Communication No. 35/1978 (9 April 1981), UN Doc. CCPR/C/OP/l "'ibid., Par. 9.2(b)2(ii)1.
at 67 (1984).
102HRC GeneralComment28, Par. 27. 103See generally e.g. Pearl, D., and Menski, W., Muslim Family Law (1998) and generally Abd at `Ati, H., The Family Structure in Islam (1977).
104Reportedby Tirmidhi and Ibn Mäjah, SeeKarim, F., (1994), supra, note 37 above,Vol. 1, p.200, Hadith No. 35.
234
105 handicapped, divorced. the the the elderly, widowed and members such as children, Article 10(1) of the ICESCR recognises the institution of marriage and provides that into free intending be The "must the the with consent of entered spouses". marriage is intending important free spouses also an condition of marriage consent of requirement of lady is Khansä'a bint Khidhäm in law. It Islamic that a called reported was given under it disliked father, Prophet Muhammad. her The by to the and so complained she marriage 106 Also in another Tradition it was reported that a girl came to Prophet annulled the marriage. in her her her father had The that Prophet to marriage against given will. the complain 107 On the basis of this Tradition, a girl forced into her the option of annulment. Prophet gave has before the to option revoke such marriage on reaching maturity under maturity marriage Islamic law. This is what is termed "option of puberty" (khiyär al-bullig) under Islamic 108 family law. In Islamic societies the definition of family is based on principles prescribed by the religion,
individuals law by by and observed reinforced
as a religious obligation. For
family is Constitution "The basis Egyptian that the the provides of the society example 09Article 5 "' founded on religion, morality and patriotism. of the OIC Cairo Declaration also provides that: (a) The family is the foundation of society, and marriage is the basis of its formation. Men and women have the right to marriage, and no restrictions stemming from from them enjoying this right. nationality shall prevent or race, colour (b) Society and the State shall remove all obstacles to marriage and shall facilitate marital procedure. They shall ensure family protection and welfare.
This clearly states the Islamic law position that "marriage is the basis of its (family) formation". The concept of family is thus strictly limited within the confines of legitimate law. defined for There legitimate Islamic are rules marriage through which a marriage under 110 formed. be The husband/father and wife/mother constitute the legitimate family may blood-ties the consequential natural of such relationship can create a primary actors, and only "' law. Same-sex relationships and sexual relationships Islamic family legitimate under
105Seee.g. Uthmin, M. F., (1982), supra, note 34 above,pp. 137-140. 106Reportedby al-Bukhari. Seee.g. Karim, F., (1994) supra, note 37 above, Vol. 2., p.635, Hadith No. 37. 107Reportedby Abu Dawud. SeeKarim, F., ibid, Hadith No 36. 108See ibid., p. 635109See Art. 9 The Constitution of the Arab Republic Of Egypt (1971). 1° See e.g. Abd at `Ati, H., (1977) supra, note 103 above, pp. 50-145. "' See e.g. 3`d Periodic Report on Implementation of the ICESCR by Syrian Arab Republic. UN Doc. E/1994/104/Add. 23 of 17/11/99, Par. 111.
235
112 basis for family. Interpreted tolerated as within an not and outside marriage are prohibited family from State State, Islamic different to this the of conception of concepts of appreciation family would generally raise no problem under the provisions of Article 10 of the ICESCR. The current broader view of the HRC in its General Comment 28 would however raise family. their couples and children as a questions about recognising unmarried
Article 10(3)
that ICESCR all children and young persons should enjoy special the provides also of for discrimination "without reasons of parentage or other any protection and assistance issue to This the the of children conceived of right out of wedlock raises also conditions". law. Islamic For Committee the the example, on under and assistance protection such enjoy Rights of the Child observed in its concluding observation on Kuwait's initial report on the Convention on the Right of the Child that: "The Committee is concerned at the potential for stigmatization of a woman or born impact keep decide the to out of wedlock, and child at a of this who couple ""3 by their the of such children rights. enjoyment on stigmatization
In response the Kuwait representative indicated that: "extramarital sex was proscribed by Islamic law, and sex with a minor under 18 years In it did the girl's consent. with cases where crime, even a considered was of age for born the tendency the parents to rid a result, was as was a child occur and themselves of the child, since they were forbidden under Islamic law to keep a child initially In the that child was event, provided for by the wedlock. of conceived out Ministry of Public Health, and subsequently by the Ministry of Social Affairs and Labour. " 4
Islamic law emphasises a child's right to legitimacy and that a child shall be linked father. is But to while maternity and one naturally conspicuous, mother one only naturally Islamic law doubt. Apparently, legitimacy as be to considers maternal subjected can paternity because a child can naturally have only one mother, legitimacy inalienable of right an 115 law birth. Islamic fact have by that the also emphasises every child of shall conspicuous iota doubt in father's to father the shut out any of about order paternity, and only, one natural
legitimacy is restricted within the confines of marriage, excluding any other man. Thus any 12 Seee.g. Abd al `Ati, H., (1977) supra, note 103 abovepp.50-145. "'See Concluding Observationsof the Committee on the Rights of the Child: Kuwait (1998) UN. Doc. CRC/C/15/Add.96, ESCR Committee: Morocco (2000) Observations UN. Doc. E/C.12/l/Add. 55, Par. 23. the Concluding See of 23; Par. also "^ SeePar. 2 of SummaryRecord of 489`hMeeting: Kuwait. CRC/C/SR.489 of 2 October 1998. 15 Thus although Islamic law prohibits conception outside wedlock, it does not legally forbid the mother from keeping a in Kuwait Report In Tradition Prophet the Muhammad was the as stated above. one wedlock outside conceived child instructed a woman who conceived and delivered a baby outside wedlock to keep and look after the child have to reported for zind till after the child had fully weaned. It is the societal stigmatisation, as observed by her punishment and postponed
236
is begins legitimate that within marriage presumed paternally until the contrary is conception legitimacy is father's Once inalienable the established within marriage, an proved. right of paternal
legitimacy
fornication/adultery
is created also in respect of
father
and child.
Consequently,
is correlatively prohibited to, inter alia, promote and ensure an active
familial Islamic responsibility within society. To protect the institution of and moral of sense legitimacy the of concept within marriage, a child conceived outside wedlock is and marriage jurisprudence "child fornication/adultery" Islamic as of under a considered
and its "descent
from father, derive the the the mother while adulterer, only, will be denied paternity as a will 116 for his The Islamic this misconduct". main consequence measure of under punitive jurisprudence is that, while the child sustains its maternal legal inheritance rights to the is legal barred from inheritance deprived it and of paternity paternal rights to the mother, 117 father. adulterous While
the Qur'an
does specifically
prohibits
fornication/adultery
and prescribes
it for direct does direct the offenders, not contain any provision on the status of a punishment is However, Prophet the outside wedlock. reported to have stated in one conceived child Tradition that: "Any man who commits fornication/adultery
with either a free woman or a
is (of fornication/adultery the a child child such relationship) of who has no right slave-girl, 118 " `Abd has `Ati "why inheritance. the tangible thus al raised question of should the of legal father father's denied deprived The be has a of or a name? child committed no child 19 is "penalize" innocent it "' unjust to party. an offence, and It is apparent from the juristic views on this question that the denial of legal paternity in this case is intended only as a punitive measure against the adulterous father and not against the child, and to deter against fornication/adultery in the Muslim society. In finding answers `Ati has `Abd al this argued inter alia that since children were highly valued and to question, disputes the to need minimise after, and confusion about their paternity sought eagerly justifies the Islamic rule that children "were to be conceived in wedlock, placed with, and entrusted
to,
devoted parents of
unsuspected characters."
Bearing
in
mind
that
fornication/adultery is a crime under Islamic law and naturally abhorrent in most societies, he from that Committee, a often prevents mother wanting to keep a child conceived out of wedlock. See arguments by Abd the further below. the `Ati against stigmatisation child such against at
116SeeAbd at `Ati, H., (1977) supra, note 103 above,p. 191.
117According to Shi ah (Twelvers) jurisprudence, the child loses both maternal and paternal rights of inheritance. See e.g. Al-Zuhayli, W., (1997) supra, note 34 above, Vol. 10, p. 7905-6. See also for e.g. Article 43 of the Egyptian Inheritance Act, born "A from his her inherits that: out of wedlock child or provides mother and maternal kin, who likewise inherit which from the child", See Replies to List of Issues: Egypt, UN Doc. HR/CESCR/NONE/2000/6 of 28/03/2000. Article 18(2) of the Constitution of Kuwait also provides that: "Inheritance is a right governed by the Islamic Shari'ah ". 118Reported by al-Tirmidhi, See e.g. Karim, F,. (1994) supra, note 37 above, Vol. 2, p. 333, Hadith No. 50. 119Abd at 'Ati, H., (1982) supra, note 103 above, p. 192.
237
120 for". hardly "adulterers While those that could qualify which were conditions contended interest deny it in it be hand to to a father of the that he thus concluded on one child's may he hand integrity the that: on other argued character, and such questionable "This denial, however, does not affect the child's basic rights to security and full be fact, In a position may a testimony to the child's such membership. community own credit, to the society's openness, to the social response of the community, and to the degree of social integration. It would seem to reaffirm the basic principle that for is Muslim has individual to Muslim of whatever value society, access equal every hindered neither by a family name nor by the lack thereof. The chief criterion of is Islam in the personal piety and religio-moral of value system excellence is for No the another nor any one responsible of credit may claim one achievement. is Whenever by the an offence else. committed of anyone actions or penalized forgives it is God Who fornication, God, the only exempts or or g., adultery e. against it illegitimacy, is if Thus, there would cling not so much to of stigma any offender. the innocent child as to the guilty parents, and its effects shall not be allowed to hurt the innocent.... The stigma need not arise in the first place for an innocent party; but if it does, reparations obtain by way of giving the child complete access to equal life from kind. free 1421 the to or stigmas of any prejudice grow up right and chances
While the prohibition of fornication/adultery
falls within the State's duty of protecting
law, Islamic institution the recognition and protection family under and public morality the Coupled is Quranic interest the best the well recognised. with also very child the of of 122 bear burden burdens the bearer the that "No of another" that argument shall of principle , imperilled illegitimate be the innocent as a consequence of vicariously child should not the States is facto that de to its therefore argument compels and strong a valid parents act of discrimination for the child without any of every and assistance special protection guarantee Answering the on questions status of children other conditions. or parentage of reasons informed in Dr. Bayari, Saudi Arabia, the representative, country's wedlock conceived out of Child Rights the that: the Committee of on the "Pregnancies outside wedlock were carried to term and a decision was taken on institution. it in families keep Most family the the or place an child would whether had keep to the the to name and nationality as child, who same right accepted 123 in born wedlock". children
Marriage is thus an important institution
on the basis of which family rights are
determined under Islamic law. While unmarried persons or children conceived out of be individual individuals, to they entitled other guaranteed as rights will not may, wedlock 120ibid., p. 195. 121ibid., p. 193. 122See Q6: 164; Q17: 15; Q35: 18; Q39: 7; Q53: 38.
223SeeSummaryRecord of the 688`hMeeting of CRC: Saudi Arabia, UN Doc. CRC/C/SR.688., Par.52.
238
qualify
for family rights under Islamic law because family rights can only be claimed
is legitimate This Islamically link the marriage. a religio-moral principle that is through of an interpretation broad by HRC incompatible the the adopted with on the concept of evidently family in its General Comment 28, and is reflective of the need for the adoption of the human bodies in doctrine by UN the treaty rights resolving such margin of appreciation differences with relevant States Parties to international human rights treaties. THE RIGHT
TO ADEQUATE
STANDARD
OF LIVING
Article 11 1. The States Parties to the present Covenant recognize the right of everyone to an adequate including himself his family, food, living for and adequate of clothing and standard housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. 2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed: (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; (b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.
The importance of Article 11 cannot be overemphasised because it restates in general is the realisation of the of economic, social and cultural rights, which purpose terms overall living for human being. A definition is of every specific not given of standard an adequate it living" but is include "adequate "adequate food, to standard of stated what constitutes improvement living "124 housing This continuous of and conditions. will and clothing ... living interpreted dignity be human to that the the mean a standard of ensures of essentially for basic is, inter life That to the the ability, every person enjoy alia, necessities of person. 125 in degrading dehumanising that to or means regard. any resort without Food, clothing and housing are, without doubt, important basic necessities of life. The individual depends, being he has inter (i) of an essentially on whether alia, well physical free him from hunger but food him to only not also nourish and provide with adequate life; healthy (ii) for his body to adequate a clothing cover and required protect and energy 124See also Art 25 of the UDHR which provides that adequate standard of living includes "food, clothing, housing and in the event of unemployment, sickness, disability, the to services, and right security social necessary and care medical in beyond livelihood lack his control". circumstances of or age old widowhood, 125See e.g. Eide, A., "The Right to an Adequate Standard of Living Including the Right to Food" in Eide, A., et al., (1995) 90. 89 31 at p. above, supra, note
239
(iii) adequate shelter that provides him with security, peace of mind and dignity. Without the inherent dignity human be the the these three of rights of person will greatly guarantee imperilled and hardly can any other human right make sense to anyone denied of those three. 126 for human basic that They are are absolutely necessary subsistence rights survival . In furtherance of the right to food, the States Parties recognise also in Article 11(2) the `fundamental right of everyone to be free from hunger" and they undertake to individually international through and
cooperation, pursue measures and specific programmes to
"improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition in developing by to systems such reforming agrarian a way or as achieve the most and efficient
development and utilization
of natural resources".
States shall also take into
food-importing food-producing both "the and of countries, to ensure an problems account in food " is It distribution to relation world supplies need. of noteworthy that the equitable is free from hunger here be fundamental to recognised as a right, which everyone of right 127 State its this to In the right under recognise all circumstances. on obligation an places General Comment 12 the ESCR Committee affirmed that "... the right to adequate food is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfilment of other human rights enshrined in the International Bill of Human Rights. It is also inseparable from social justice, requiring the adoption of appropriate economic, environmental and social policies, at both the national and international levels, oriented to the eradication of poverty and '28 for human fulfilment the all". of all rights
The States Parties undertake "to take appropriate steps to ensure the realization" of the "(t)he individual has 11. Eide is Article that notably observed also expected to rights under best his/her judgement, " to the his/her to realise or working capacity, property of own use 129 living. Thus adopting Shue's typology of duties his/her right to an adequate standard of duties State in (i) the the duty this to the rights, of subsistence regard are namely: correlating duty deprivation, places a on the State not to eliminate any individual's which to avoid legitimate means of subsistence (ii) the duty to protect from deprivation, which places a duty individuals deprivation legitimate State their to against the protect of available means of on duty deprived, (iii) duty the the to State the to provide aid which and places a on subsistence,
126See generally Shue, H., (1979) supra, note 5 above. 127See Craven, M., (1995) supra, note 6 above, p. 307ff. 128General Comment 12, Par. 4.
129Eide, A., (1995) supra note 125above,p. 100.
240
130 for Starting with General themselves. for the subsistence of those unable to provide Comment 12 on right to food the ESCR Committee has adopted this tripartite view of States Parties obligations under the Covenant consisting of the obligations to respect, protect and fulfil,
thus observing that: "The right to adequate food, like any other human right, imposes three types or levels fulfil. In States to to to the and obligations respect, protect parties: on of obligations turn, the obligation to fulfil incorporates both an obligation to facilitate and an food The to to to existing access adequate respect obligation provide. obligation in States that to take result preventing such access. any measures not parties requires The obligation to protect requires measures by the State to ensure that enterprises or individuals do not deprive individuals of their access to adequate food. The in State fulfil (facilitate) the to must pro-actively engage activities means obligation intended to strengthen people's access to and utilization of resources and means to food Finally, individual including livelihood, their security. whenever an or ensure food beyond for is to the to their control, enjoy right adequate reasons unable, group by the means at their disposal, States have the obligation to fulfil (provide) that right directly. This obligation also applies for persons who are victims of natural or other disasters". 13'
Regarding international co-operation in respect of right to food, the ESCR Committee has also emphasised the duty of States not only to individually and collectively take positive individual food for but to to the every right to also adequate of realisation ensure steps "refrain at all times from food embargoes or similar measures which endanger conditions for food production and access to food in other countries. Food should never be used as an 132 instrument of political and economic pressure". The duty in respect of right to housing seems much more bearing upon the State than the is due This to the that food the resource-demanding nature of to right and clothing. and right individuals in developing food States fact that, and clothing, most unlike would not obvious be able to afford to build or buy houses on their own. The ESCR has issued two General '33 housing. In its General Comment 4 the Comments (GC4 and GC7) on the right to adequate Committee noted that "(t)he human right to adequate housing, which is. . .derived from the importance is for living, the central to of enjoyment of all standard of adequate an right indicated Committee "the right to "134 The' then that rights. and cultural social economic, housing should not be interpreted in a narrow or restrictive sense which equates it with, for t3DShue, H., (1979) supra, note 5 above,pp.52-53. Seealso UN Centre for Human Rights, Right to Adequate Food as a Human Right (1989) pp.21-50. 131GeneralComment 12, Par. 15. 132ibid, Par. 36-41. "; General Comment 4 issued in 1991 covers the right to adequate housing generally, and General Comment 7, issue in 1997 addresses the problem of forced evictions.
134General Comment4, Par.1.
241
having head by the a roof over one's or views shelter merely provided shelter example, be live in but "should the to seen as right somewhere security, exclusively as a commodity" 435 Strategy 2000" Shelter Year by "Global The UN to dignity. the the adopted and peace UN General Assembly in 1988 defines adequate shelter to mean "adequate privacy, adequate basic infrastructure lighting and ventilation, adequate and space, adequate security, adequate ' 36 facilities basic In location to all at a reasonable Cost.,, work and regard with adequate has identified Committee housing, ESCR therefore that the to the adequate right guaranteeing the following
into by States, namely: (i) legal be taken consideration seven aspects must of tenure, (iii)
(iv) habitability, (v) affordability; availability security 137 Another important observation of (vii) location, (vi) adequacy. cultural and accessibility, be irrespective housing is "the to to that Committee should ensured all persons of right the of tenure, (ii)
income or access to economic resources." This obviously places a duty on the State to formulate national housing policies and strategies to alleviate homelessness. Where any is be beyond State by this to the to being taken considered right maximum realise a steps is has "it Committee State, that that the the to reiterated appropriate a available resources in international for be cooperation accordance with articles made as soon as possible request 11(1), 22 and 23 of the Covenant, and that the Committee be informed thereof. "138 In its General Comment 7 the Committee addressed extensively the problem of forced Covenant. identified its incompatibility It the the provisions of with evictions, emphasising during developmental forced that include communities occur projects such eviction of this to ' 39The Committee then dams large-scale energy projects. or other pointed as construction of is justified, State that duty to the considered ensure, where eviction such evictions the of out is by law in compatible with the Covenant and warranted a which "are carried out a manner s140 The Committee legal to those the and remedies are available affected. recourses that all has also listed a set of procedural protections that must be guaranteed to the individual in forced eviction. any of case
'4'
Apart from the specific mention of right to food, clothing and housing, Article 11(1) improvement living "the to the of everyone continuous of conditions". right also recognises
'35ibid., Par. 7. '36Global Strategyfor Shelter to the Year 2000, UN Doc A/43/8/Add. 1. Seealso G.A. Res. 42/191 of 9 March 1988 and UN Doc. A/RES/43/181 of 20/12/1988.
'}7 See General Comment 4, Par. 8, for the explanation of these elements by the Committee. See also Craven, M., (1995) 6 above, p335ff. note supra,
13 GeneralComment4, Par.10. j; ' GeneralComment7, Par. 8. 10 ibid., par. 12. 141ibid., Par. 16.
242
This notably indicates that the right to adequate standard of living under the Covenant is in dynamic State line but the obligation upon with a continuous places generally not static developments. economic and social From the perspective of Islamic law, both the substantive provisions of Article 11 and the Committee's
interpretations
of the right
to an adequate standard of living
are
law. Islamic The Qur'an `ah Shari the of principles and with provisions commensurate with for benefit living human life the things the and good that of are created of good confirms 142 deprive humanity disapproval it to beings, attempt of the good things at any and expresses '43 for Under Islamic law, State living them. the life that of standard ensure an adequate of has duty hardship to that to a specific ensure and everyone, prevent must endeavour is living. This from the Quranic the evident standard of an adequate enjoys poor, especially indigent for is for in "And the there their that: a right wealth who ask and verse which states him who does not ask."144The Prophet is also reported to have prayed as follows: "Oh God, hardship, and show mercy them hardship to and gives over my people who rules anyone give 145 " The them mercy. and shows enjoyment of an over my people to anyone who rules living of adequate standard implementation
in State Islamic the through a proper early was ensured
(Compulsory the of application zakat and
Tax) and bays al-mä1 (State
Treasury) institutions. There is ample provisions in both the Qur'an and Sunnah to support that everyone has a housing State. instance Islamic For food, the within an and to clothing adequate right Qur'anic verse which provides that: "And they feed, for the love of God, the indigent, the feed for God (Saying) We do the the you sake of alone; no reward we captive. orphan and 146 is indicates hungry in to that from the thanks" no one desire expected go clearly nor you Islamic State. The principle of freedom from hunger, from fear and from want stands Qur'anic law God has Islamic that through the verse which stipulates under established 147 fear". food hunger Thus "with and with security against against under provided mankind Islamic law, feeding the poor and indigent is not considered as a favour to them, rather the
Qur'an stipulatesit as a right which the poor and indigent have in the wealth of the affluent
142See e.g. Q2: 29 which says "It is He Who created for you all things that are on earth" and Q28: 77 which says: "... And forget not your portion of lawful enjoyment in this world". 143Q7: 32 which says: "Who has forbidden the beautiful gifts of God which He has produced for His servants and the things for has He sustenance? produced which clean and pure
144Q51:19. 14'Reportedby Muslim, Seee.g. Karim, F., (1994), supra, note 37 above,Vol. 2. p.569, Hadith No. 5. 146Q76:8-9147Q 106:4.
243
148 State. The Prophet his in this the the corroborated with of saying that no resources and true Muslim goes to bed with a full stomach while his neighbour goes hungry.
From an
Islamic perspective, it is obnoxious that millions of people do starve and die of starvation in a is food in-built is There institution there already no shortage. an naturally under where world Islamic law for ensuring freedom from hunger for everyone, if well implemented. It is the fixed tax percentage of all agricultural produce and that of whereby a obligatory agricultural indigent for This deductible the is the of poor and as maintenance of every year right. cattle international humanitarian both for be as a national and policy emulated promoting could freedom from hunger and ensuring the right to food for even the most indigent persons of the world.
Not only is the right to food substantiated within Islamic law, one finds that the
Qur'an also often emphasises on wholesomeness whenever it makes reference to food or drink. For instance the Qur'an 2: 168 says: "Oh Mankind, eat of what is on earth, lawful and God has 5: 88 "Eat Qur'an for lawful " the things says: of which provided and you, good... in food, food, include ". Lawful the to context of right would and good adequate, and good... dignified healthy life for food that a and ensures everyone. wholesome and nutritious The second Caliph Umar is recorded to have demonstrated during his rule in the early Islamic State that the State has a duty to ensure the right of everyone to food. He went to from free hunger. He disguised lengths that the to was would populace go ensure round great find listening On to the to the and out about comments welfare of patrol populace. night on have Caliph house from he heard to the to was reported come a patrols wherein such of one knocked door find He the to out what was the cause and found a the crying of children. fire her hungrily her on with children milling something around cooking and crying woman in anticipation of the "meal" being cooked. Upon enquiry, the woman informed Umar that, having nothing to feed her children that night, she had only placed some stones in the pot on the fire to hoodwink the children that something was being cooked for them, hoping that they for "meal" fall Caliph The felt the highly to waiting asleep while cook. eventually would his brought back local butter to and palace a sack of rushed wheat and and some aggrieved from the State storage for the woman and her children. The Caliph was reported to have insisted on carrying the food personally to the indigent family, lamenting that he feared being in hereafter left in hunger during his the to concerning anyone who was wallow questioned 149The Caliph was alluding to the Tradition Caliph. Prophet the of as earlier quoted rule
148SeeQ51: 19. 'a9This is a very well known incident during the Caliphate of Umar, which has been narratedin slightly different versions by most Islamic historiansand traditionists.
244
(i. is State) like inter that the the ruler e. alia, stated, a shepherd that would be held which flock. for his the welfare of responsible
He did not consider his action as a favour to that
family but rather as a duty that correlatively ensured the right of the old woman and her in State by food Islamic Shari `ah. the the to as provided children The Prophet Muhammad also demonstrated refrain from using food embargoes as a weapon of political or economic pressure even against enemies. The Chief of Yamamah, Thumamah ibn Uthal had embraced Islam during the early period when Mecca was still very hostile to the Muslims. Yamamah was then the main source of grain supplies to Mecca. The Chief, after his embrace of Islam, decreed an embargo on grains from Yamamah to Mecca. The Prophet Muhammad however intervened and ordered the lifting of the embargo. 150 In respect of right to clothing, evidence is found for example in the Qur'anic verse Children Adam, have bestowed "Oh We of garments upon you to cover which says: (screen s151 to in your private parts) and also serve as adornment. and also yourselves .. "... (God) has He says: provided you with garments to protect you from which verse another 152. " The stated purposes of clothing here, i. e. cover, adornment and heat (and cold)... depict does human dignity. the certainly also enhancement of protection,
The Prophet also
in the to those provision of clothing need as a most rewarding religious greatly encouraged is for housing found, for Evidence in to the verse of the equally right example, obligation. Qur'an which states that: "And God has made for you your homes as habitations of rest and hides (tents) for for dwelling, the you out of of cattle made and which you find so light quiet; 153 in (your " handy) travel It is clear from the travels)... (and when you and when you stop last verse that the right to habitation is not limited to the domiciled but extended even to those constantly on the move, like Nomads and Gypsies. In line with the above provisions, Article 17(c) of the OIC Cairo Declaration thus also living by to the right of everyone an adequate standard of providing that: recognises "The State shall ensure the right of the individual to a decent living which will enable him to meet all his requirements and those of his dependants, including food, clothing, housing, education, medical care and all other basic needs."
The Cairo Declaration also provides in Article 18(c) that neither shall a private residence be demolished, confiscated nor its dwellers evicted.
150See Hamidullah, M, The Muslim Conduct of State (Rev. 7`h Ed. 1977) p. 196, Par. 392. 151Q 7: 26.
ist Q16:81. 153Q16:80.
245
TO HIGHEST
RIGHT
ATTAINABLE
STANDARD
OF PHYSICAL
AND MENTAL
HEALTH
Article 12 I.
The States Parties to the present Covenant recognize the right of everyone to the health. highest the standard of attainable physical and mental of enjoyment
2.
The steps to be taken by the States Parties to the present Covenant to achieve the full for: include those this necessary right shall realization of
(a) the provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy developmentof the child; (b) the improvement of all aspects of environmental and industrial hygiene;
(c) the prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) the creation of conditions which would assure to all medical service and medical attention in the event of sickness.
The adage that "health is wealth" explains the importance of health to the well being of housing, food, from Apart to the right to health and the human clothing and right the person. in UDHR the mentioned as elements of an adequate specifically also are medical care 154 his family. Committee individual The ESCR has for living the and also standard of indispensable for human is "fundamental the health that right exercise of other a observed human rights" and that every human being "is entitled to the enjoyment of the highest tss in living life dignity". Article 12(1) health to thus a conducive of standard attainable highest the "the to the attainable standard of enjoyment of everyone right of recognises States Parties for health" to take the the necessary and undertake steps mental and physical full realization of this right.
Article 12 createstwo broad sets of norms in respect of health rights. The first is the individual highest the the to the the of attainable standard of of enjoyment rights guarantee of health, while the second is the protection of public health as a necessary step for the first. the of realisation
Sometimes, the protection of public health may however tend to
"' individuals. freedom This during liberty the the of of movement could occur and restrict diseases by State Article 12(2)(c). Such the under or endemic restrictions control of epidemic in for health be law. have the to then strictly protection of public and accordance with would The maintenance of both individual and public health depends on a lot of other factors, disposal, housing sanitation, environmental nutrition and even provisions, such as waste highest to the the the thus right enjoyment of attainable standard of physical makes which Apart from its demand for level health complex. quite a great of economic and and mental 154See Art. 25 (1)UDHR (1948). 155General Comment 14, Par. I and Par. 3.
246
human resources, it also depends a lot on the developmental level of each State. In defining the normative content of this right the ESCR Committee has observed that the right to health in all its forms and at all levels will include elements of Availability, Accessibility, 157 Quality, Acceptability and and using its tripartite interpretation of States Parties has Committee that: the observed obligations, "The right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil. In turn, the obligation to fulfil contains obligations to facilitate, provide and promote. The obligation to respect requires States to refrain from interfering directly or indirectly health. The the to the of obligation to protect requires States to enjoyment right with take measures that prevent third parties from interfering with article 12 guarantees. Finally, the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health. i158
It is manifest that the realisation of right to health in the above terms remains one of the developing international Although confronting nations. problems co-operation is not greatest it Article 12, Article 11, as was under mentioned mentioned under such cospecifically is health in to the realisation of very pertinent a reasonable standard of care operation
developing nations. The international obligations in the realisation of the right to health is Committee follows: by ESCR the as also emphasised "To comply with their international obligations in relation to article 12, States parties have to respect the enjoyment of the right to health in other countries, and to prevent third parties from violating the right in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations and applicable international law. Depending on the availability of resources, States should facilitate access to essential health facilities, goods and services in other countries, wherever possible and provide the necessary aid when required. States parties should ensure that the right to health is given due attention in international agreements and, to that end, should consider the development of further legal instruments. In relation to the conclusion of other international agreements, States parties should take steps to ensure that these instruments do not adversely impact upon the right to health. Similarly, States parties have an obligation to ensure that their actions as members of international organizations take due account of the health. Accordingly, States to parties which are members of international right financial institutions, notably the International Monetary Fund, the World Bank, and banks, development should pay greater attention to the protection of the regional influencing in lending health the to policies, credit agreements and international right "9 institutions". measures of these
'-%See e.g. Art. 12(3) of the ICCPR (1966). 157General Comment 14, Par. 12. " General Comment 14, Par. 33. 159ibid., Par. 39.
247
The Committee's comprehensive General Comment 12 broadens the perspective of the in health to a manner that greatly envisages the enhancement of the quality of human right life in relation to the enjoyment of good health. Islam also emphasises the importance of both mental and physical health. Great importance is attached to medical and health sciences as it is to religious sciences because without good health neither religious nor secular activities can be performed by anyone. The training of medical personal and establishment of hospitals was considered as an important duty of the State and was greatly encouraged very early in Islamic history.
Isaacs has
pointed out that: "Islam not only put medicine on a high level but also conferred the title of hakim (wise) on medical practitioners, a term used by Muslims up to the present day in many areas. The association of medicine with religious learning is noteworthy, and is a pleasing feature of Muslim life: for according to a Tradition of the Prophet: "science is twofold, theological science for religion and medical science for the body,,. 160
Saud has also recorded that: "From the time of the Banü Umayyah rule the Muslims developed the institution of hospitals. During the reign of the `Abbäsi Caliph Härün al-Rashid, a hospital was built in Baghdad, which was the first in the history of this city. Many new hospitals were established shortly afterwards. Some of them had their own gardens in which The large hospitals had medical schools the medicinal plants were cultivated. attached to them. Beside such hospitals there were a large number of travelling hospitals in the Muslim world s16' .
These were all in recognition of the importance of health and medical assistance within human society. The duty of ensuring the highest attainable standard of health in society through the adequate training of medical personnel and provision of necessary medical and health facilities remains binding upon modem Muslim States of today under Islamic law. Islamic law advocates both the preventive and curative approaches to health and
best both the to health. as preventive approach cleanliness mental and physical encourages Both individuals
and the State are thus encouraged to maintain personal and societal
first highest the towards the and natural step as ensuring attainable standard of cleanliness both physical and mental health in society. The Prophet emphasised this by declaring that: 162 faith". is half This will include all aspects of personal, environmental and "Cleanliness of
160See Young M. J.L., et al (ed.) Religion, Learning and Science in the 'Abbasid Period (1990) p. 342. 16' Saud, M., Islam and Evolution of Science (1994) p. 95.
162Reportedby Muslim, Seee.g. Karim, F., (1994), supra, note 37 above,Vol.!, p.663, Hadith No. 1.
248
industrial hygiene. There are Islamic instructions on the removal of dirt and prohibition of in in The defecation or stagnant waters. open places prevention and control of and urination is law diseases by Islamic Tradition in also under evidenced a which and endemic epidemic instructed is in have "... When is that: there to Prophet plague any city don't enter the reported 163 don't fleeing in from it". it breaks The there it and when go out out any city while you are State thus has a duty to control and protect public health to ensure the ultimate enjoyment of the right to health by individuals.
The curative aspect of health is also stressedunder Islamic law through the belief that by for disease. The God is nursing, caring and treatment of both every there a cure prescribed the physically and mentally ill is also considered as a very rewarding duty under Islamic law. It is thus an important duty of the State to ensure the availability of medical services and ideals illness. Article in In 17 the the recognition of above event of of the attention medical OIC Cairo Declaration provides that: (a) Everyone shall have the right to live in a clean environment, away from vice and foster his that would self-development,and it an environment moral corruption, is incumbent upon the Stateand society in generalto afford that right. (b) Everyone shall have the right to medical and social care, and to all public State limits by the the within of their available provided society and amenities resources.
THE RIGHT
TO EDUCATION
Articles 13 and 14 13 (1) The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
(2) The StatesParties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary educationshall be compulsory and available free to all; (b)
(c)
Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
163Reportedal-Bukhari and Muslim, Seee.g. Karim, F., ibid, Vol.!, p.284 Hadith No.44.
249
(d) Fundamentaleducation shall be encouragedor intensified as far as possible for those persons who have not received or completed the whole period of their primary education; (e)
The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.
(3) The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to in their the of children conformity with their moral education and religious ensure own convictions. (4) No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the in institutions that the given such shall conform to such education requirement laid down by be the State. may as standards minimum
14
Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.
Education is the key to mental liberation which helps the individual not only to develop his own personality but also to be useful to his society. The right to education is thus 14 of the ICESCR. Apart from recognising Articles 13 and under covered comprehensively States Parties Article 13(1) that the to education, also agree under the right of everyone "education shall be directed to the full development of the human personality and the sense for human rights and fundamental freedoms" and the dignity, respect strengthen shall and of "that education shall enable all persons to participate effectively in a free society, promote friendship among all nations and all racial, ethnic or religious tolerance and understanding, for United Nations further "164 the the the of activities maintenance of peace. groups and There is therefore a form of consensus among States Parties to the ICESCR on the fact that individual development. important is tool of and societal education an Apart from being a right in itself, education is also an essential tool for the exercise and full enjoyment some minimum
of human rights. It has been described as an empowerment level of education and literacy,
impaired. be greatly rights would
Article
fundamental human for and rights respect
an individual's
awareness about his human
13(1) states that education freedoms".
165Without right.
"shall
strengthen
the
This is achieved through both general
1'4SeealsoArt. 26(2)of theUDHR(1948). 165SeeGeneralComment 13, Par. 1.
250
in human the education educational curriculum. rights of specific provision and education The Vienna Declaration and Programme of Action after the 1993 World Conference on Human Rights called on all States and institutions "to include human rights, humanitarian law, democracy and rule of law as subjects in the curricula of all learning institutions in formal and non-formal settings."166 The ESCR Committee has observed that the right to education in all its forms and at all levels shall exhibit the essential features of Availability, Accessibility, Acceptability and 167 Based on its tripartite interpretation of States Parties obligations, the Adaptability. Committee also observed that: "The right to education, like all human rights, imposes three types or levels of fulfil. In States to the turn, the and obligations respect, protect parties: on obligations both facilitate fulfil incorporates to to an obligation and an obligation to obligation States The to requires parties to avoid measures that respect obligation provide. hinder or prevent the enjoyment of the right to education. The obligation to protect from interfering States that third to take prevent measures parties parties requires The fulfil (facilitate) the to to the education. obligation of right enjoyment with requires States to take positive measures that enable and assist individuals and Finally, States have to the to parties an obligation education. enjoy right communities to fulfil (provide) the right to education. As a general rule, States parties are obliged to fulfil (provide) a specific right in the Covenant when an individual or group is by beyond for to the their themselves the means control, realize right reasons unable, is However, disposal. the this their obligation extent of always subject to the text at 168 Covenant". of the
Under Article 13 every State shall provide at least free compulsory primary education for all, and under Article 14 each State Party that has not yet attained the provision of free for detailed to all, undertakes work out and adopt a education primary plan of compulsory implementation free the for the of principle of compulsory progressive primary action 169 Secondary higher for a reasonable number of years. within and all education education introduction free be to accessible all and with progressive available of made also shall Article both formal informal levels 13 those covers as well. and education as education at for for fundamental those who one reason or another misses out of primary education well as improve It the to the teaching to need conditions recognises of staff also ensure education. the full achievement of the right to education. Although the State has an obligation to provide free and compulsory primary education, liberty legal the to of parents and guardians to enrol their children, in respect they undertake 11 UN Doc A/CONF. 157/23.Part 11Par. 79. 167GeneralComment 13, Par. 6. 163ibid, Par. 46-47.
251
in institutions their or moral convictions, private other than those religious conformity with institutions State, by those the private provided conform with minimum established State. by The be the parents and approved guardians would standards under educational 170 interest in best The State interfere here the the to of child. shall also not act with obligation the establishment of private institutions subject to their observance of required minimum individual development the their of and of principles societal pursuance set out and standards 171 13(1). Article in The Covenant does not contain a provision on academic freedom but the Committee has institutional important freedom that autonomy constitutes and an aspect academic observed in that that: to regard and stated education of right "Members of the academic community, individually or collectively, are free to knowledge ideas, develop transmit through research, teaching, study, and and pursue, discussion, documentation, production, creation or writing. Academic freedom includes the liberty of individuals to express freely opinions about the institution or fulfil functions discrimination in to their they without work, which or fear of system by State in to the actor, or any other participate professional or repression bodies, internationally to the enjoy all and academic recognized representative human rights applicable to other individuals in the same jurisdiction. The enjoyment of academic freedom carries with it obligations, such as the duty to respect the academic freedom of others, to ensure the fair discussion of contrary views, and to 172 discrimination the treat all without prohibited grounds". on any of
These ideals and aspirations concerning the right to education under the ICESCR are ideals in Islamic is There the on with education as well. consonance consensus very much is important Islamic thought that of education absolutely schools and compulsory all among its inception had laid from importance Islam law. Right the Islamic great emphasis on under in development human its The first five the the of role person. very and revealed of education learning. The Qur'an follows: to the related and were education verses were as of verses "Read! In the name of your Lord Who created (everything). He created Man from a is blood. Lord Read! And Most Generous. He has taught your congealed of clot (writing) by the Pen. He has taught Man that which he knew not. A73
These five verses continue to be the basic reference point for advocating the right to law. There Islamic in both Qur'an the are also many other references under and education Sunnah on the importance of education, the obligation of seeking knowledge, and the 169Seealso GeneralComment 11. 10 SeeArt. 3(1) of the Conventionon the Rights of the Child (1989) which provides that: "In all actions concerning be a primary consideration." interest best the the child shall of children ... 171SeeArt. 13(3-4). 172General Comment 13, Par. 39. 173Q96: 1-5.
252
superiority
of scholarship. The Qur'an
summarises the importance of education and
interrogative "... Can learned that: those statement who are affirmatory with an scholarship be compared with those who are unlearned? It is those who are endowed with understanding 174The Prophet had also stressed the paramount value of education that receive admonition". in many Traditions, a few of which are quoted below: "Whoever goes out seeking knowledge is on the path of God till he returns. 99175
"Whoever follows a path seekingknowledge, God will thereby make it an easy way for him to Paradise".176 "The superiority of the scholar over the (mere) worshipper is like the superiority of 177 " full the moon over the stars.
The Prophet had emphatically stated in one Tradition that seeking of knowledge (i. e. female)78 for both Muslim Asad is the thus that male and concluded compulsory education) from an Islamic perspective "it is the citizens' right and the government's duty to have a freely knowledge (and accessible would make compulsory) to which system of education 179 importance in This the the and emphasis recognition on state". of woman and every man duty fully State law Islamic the the thus accommodates of under the education under Covenant to provide at least free and compulsory primary school education to everyone. In Article 9 OIC importance Cairo Declaration the to the of of right education, of appreciation provides that: (a) The quest for knowledge is an obligation and the provision of education is a duty for society and the State. The State shall ensure the availability of ways and diversity in the to shall guarantee educational acquire education and means interest of society so as to enable man to be acquainted with the religion of Islam for benefit facts Universe the the the of of mankind. and (b) Every human being has the right to receive both religious and worldly education from the various institutions of education and guidance, including the family, the in integrated the the etc., and such an university, media, and balanced school, manner as to develop his personality, strengthen his faith in God and promote his defence both for the of rights and obligations. respect
The need for human rights education under Islamic law, is also buttressed by the "A he knows that: that person will often oppose concepts saying nothing about". common
i"" Q39: 9. "s Reported by Tirmidhi, See e.g. Karim, F., (1994), supra, note 37 above, Vol. 1, p. 35 1, Hadith No. 38. 176Reported by Tirmidhi, AbO Däwud, See Karim, F, ibid, p. 348-349, Hadith No. 32. 171 ibid.
'78 Reported by Ibn Mäjah, See Karim, F, ibid., Vol. 1, p. 351, Hadith No., 37. X79Asad, (1980) supra, note 85 above p. 86.
253
Lack of human rights education can (and do) create misconceptions about the international human rights objective and actually deny individuals the right to know their rights as human beings under both domestic and international law. Human rights education would certainly increase the awareness and the understanding necessary for the realisation of the rights that human beings. is to as entitled everyone
This thus makes human rights education as
important as the enjoyment of human rights itself. THE RIGHT
TO CULTURAL
LIFE AND BENEFITS
OF SCIENTIFIC
PROGRESS
Article 15 1.
The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
2.
The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
3.
The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
4.
The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.
Cultural life has been described as "everything which makes life worth living" and "that its from human "closely thus to animal counterpart" and society related separates which 180 Its enabling factors would thus include a host of other rights such as human dignity". freedom of association, freedom of thought, conscience and religion, freedom of expression, be different, is Culture however to to right and right education. self-determination, right of factors human is distinguishing the the society, scope of of which sometimes very one of difficult
to determine. It may be perceived from different dimensions. It is often used to
describe the way of life of a particular community referring to their customs, civilisation, instance heritage. For Article 27 ICCPR for the the of provides material right of and spiritual "to "in their the enjoy own culture" community with minorities other members of members Article 27 for Also UDHR "the freely in the to of provides their right participate group". of is If life this life to the the the understood community". mean of cultural of cultural individual belongs, then the group or community is the cultural the to which community 180See Adalsteinsson, R., and Thorhallson, P., "Article 27", in Alfredsson, G., and Eide, A., (ed) (1999) supra, note 97 above, p. 575.
254
individuals lead life the to their to the mean right of own would cultural right creator, and in distinction in from It life that sense signifies that others. community as members of way of for identity is basis That be different. the to cultural and cultural relativism, often the right jeopardising human the is concept of universal of capable as criticised sometimes and 181As a matter of reality, it is impossible to deny the natural diversity of cultures rights. has Stavenhagen "In human the that: the pointed out world. some of population among instances, all or most of a country's population share a common culture; in others, a State is identity s182 The different recognition of cultural cultures. or cultural of made up of a variety human jeopardise but however the universality of rights rather enhance not relativism should it. Article
1 of the UNESCO Declaration of the Principles of International Cultural Co-
identified had 1966,183 that: of operation 1. Each culture has a dignity and value which must be respected and preserved. 2.
Every people has the right and the duty to develop its culture.
3. In their rich variety and diversity, and in the reciprocal influences they exert on belonging form heritage the to all of common part all cultures another, one mankind.
The universality of human rights is actually better projected through the recognition of individuals it life, because that to can still maintain their diverse signifies the right cultural human rights. This is subject only to inclinations the atmosphere of within universal cultural invidious discriminatory that elements of any traditional culture may other or the proviso have to be rejected in order to fit into the universal atmosphere of international human rights. The challenge that the right to cultural life poses in the context of cultural identity or cultural different cultures and interpret them as the is to the adequately understand need relativism instruments of universalism in human rights. In that respect and from an Islamic legal has been created from a single pair Quranic that the states mankind verse which perspective, into (they) "made know is female tribes that and nations may and each other" of male and 184 instructive. very
181See e.g. Donnelly, J., Universal Human Rights in Theory and Practice (1989) pp. 109-124; and UN Dept. of Public Information, Is Human Rights in Jeopardy? (1987).
182SeeStavenhagen,R., "Cultural Rights and Universal Human Rights", in Eide, A., et al.,(ed.) (1995) supra, note 31 66. 63 at p. above,
183Adopted on 4 November 1966. See UNESCO's Standard-Setting Instruments, Incorporating Supplement 1, (1982) IV. C.
'$' Q 49: 13; See also generally Anyaoku, E., Managing Diversity in Our Contemporary World (1997); Mandela, N., Renewal and Renaissance: Towards a New World Order (1997); Annan, K., Dialogue of Civilizations And The Need ForA World Ethic (1999).
255
It is important to note that the wording of Article 15 (1)(a) of the ICESCR is however it for "take in "community", the to simply provides right everyone of part with qualified not cultural
life". This tends to amplify the recognition
of the right to cultural life as an
individual right. The right to take part in cultural life can certainly also be perceived as "the in individual is the the cultural creator which case creation", process of artistic and scientific (as an artist, writer or performer) and has the right "to freely create (his own) cultural 'oeuvres', with no restrictions, and the right of all persons to enjoy free access to these 185This is further expressed in Article 15(1)(c) through the recognition of the right creations". interests from from benefit "to the the of moral and material protection resulting of everyone 186 is he is literary It the author". production of which or artistic also very much any scientific, individual. freedom the to of of expression related The non-association, in Article 15, of the right to take part in cultural life with "the de-emphasise fact life however be in defined does the that cultural will often not community" Stavenhagen has thus to group or community. social particular observed that a relation in be have "can that with others enjoyed community and community only must rights cultural it in develop has to what common. " He further stated that preserve, protect and the possibility be individuals, "their beneficiaries the may cultural rights content evaporates of while i187 The the the of groups. collective rights enjoyment of the right to and preservation without fully in life be in thus realised relation to the identification may take part cultural
of a
if in (even minority) which preserves such culture and to which the particular community, '88 The general nature of Article 15(1)(a) also has the potential of individual associates. in life. This however cultural participation would cross-border raise the question allowing a in State have individual it the to a particular may right an practice within a of whether "alien" Due in life to that to their the community. presumed considered vulnerability cultural is life, the to emphasised attention often on protection of cultural rights cultural right of area indigenous peoples. and of minorities The right to cultural life can also be perceived in the universal sense of the accumulated humanity heritage the of universal civilisation as a whole, and the right of every and material individual to that heritage and civilisation. An extension of this perception
would be the
benefits its the to of scientific enjoy progress and application as recognised everyone right of is an interpretation of cultural life in developmental terms. (1)(b). This 15 Article under 185SeeStavenhagen,R., (1995), supra, note 182 above, pp. 65-66. 186Art. 15(1)(c) ICESCR. `$' SeeStavenhagen,R., (1995), supra, note 182 above,p.68. `$ c.f. Eide, A., "Cultural Rights as Individual Rights" in Eide, A., et al.,(ed.) (1995), supra, note 31 above,p.229-240.
256
UNESCO adopted a "Recommendation on Participation by the People at Large in Cultural Life and Their Contribution to It" in 1976, in which it defined participation in cultural life as "the concrete opportunities guaranteed for all - groups or individuals - to express themselves freely, to communicate, act and engage in creative activities with a view to the full 189 life harmonious It development of their personalities, a and cultural progress of society". has been observed that "(t)his aspect of cultural rights has enormous potential for further development in law and society"190 because it would afford the opportunity for everyone to have access to and benefit from international scientific progress and thereby contribute to the individual down culture and consequently of each narrow enrichment overall
the gap of
diversity between the different cultures of the world. The guidelines for reports under the ICESCR
suggests a comprehensive
perspective
by
the ESCR
Committee,
which
States Parties the stated above. aspects of culture are required to provide all accommodates information, inter alia, on: "Promotion of cultural identity as a factor of mutual appreciation "Promotion individuals, regions"; of awareness and enjoyment of groups, nations and among indigenous heritage minorities ethnic groups and and of of national peoples" and the cultural 191 heritage". "Preservation and presentation of mankind's cultural There is scope within Islamic law for the recognition of the right to cultural life in all the in identifies itself Islam Defined terms of community, above. as a religiocontexts analysed for individual belong (ummah) that to professes every or attach to that cultural community different is It that tribes community accommodates a universal and peoples and community. jurisdictional boundaries transcends and of the modern nation-state. The geographical thus in life Islamic the take to cultural with other members of part community could right jurisdiction beyond the with a community of a State. Although there are mean therefore often by Shari `ah for Islamic the the Islamic norms prescribed community, religio-cultural general law also recognises the possibility of differences in some cultural practices of the community due to the diversity of its members. That was the basis for the recognition of `urf, (known (Customs) different `adät tribes the that of and nations and make up the practices) law by jurisprudence, Islamic source subsidiary of all schools as a of and community Malikz^ by the that school, provided such practices and customs are not especially 192 Qur'an Sunnah. Muslims the the to the norms of or are thus still able to contradictory
'$' November 26,1976. SeeUNESCO Standard-SettingInstruments,Incorporating Supplement 1 (1982), IV. B.7, Sec.1(2)(b). 190Adalsteinsson,R., and Thorhallson, P., (1999) supra note 180 above,p.593. "' SeeArt. 15 (1)(c) (d) (0 RevisedGuidelines,supra, note 7 above. 192See e.g. Doi, A. R., Shari'ah: The Islamic Law (1984) p. 84.
257
193 Islamic local Islamic law the the their within scope of universal customs culture. maintain from Islamic Thus the the of other cultures apart presence culture. recognises nonalso Muslims are free and entitled to follow their own culture and way of life within the Islamic State, subject only to the protection of public order and morality, and in accordance with due has law. Hamidullah even argued that the traditional rule which prohibited nonof process Muslims from imitating Muslims in dress or other similar social manifestations within the Islamic State, was a rule that bolstered the communal culture of non-Muslims within the State, because it
enabled them to maintain 194 State. Islamic manifestations within the Islamic
their
own cultural
and social
The right of the individual to enjoy the benefit resulting from any scientific, literary or is he is Islamic law. So is the of which author also recognised under production also artistic the right of everyone individually
or as part of a group to participate and benefit from the
heritage the and universal civilisation material accumulated
of humanity as a whole. In
OIC Cairo Declaration for the the right of the rights, only provides cultural of respect individual to "enjoy the fruits of his scientific, literary, artistic or technical production and interests the to moral and stemming therefrom, provided that such material the right protect 195 is Shari'ah". This does however to the of not contrary principles not production life to the the Islamic right other aspects of cultural analysed above exclude under necessarily law. What Islamic law would obviously prohibit in respect of cultural rights is any cultural in the Shari `ah, that the obscenity and nudity violation of moral promotes code of practice because the Qur'an has specifically prohibited the spread of lewdness within the Islamic society.
CONCLUDING
REMARKS
It is deductible from the above expositions that the economic, social and cultural rights ICESCR Sharjah the the are generally compatible with under recognised
and realisable
Islamic law. Thus, Islamic law the of can actually serve as a vehicle for the principles within in Muslim States. The of economic, realisation social and and cultural rights promotion issues in the mainly concern of women employment and the concepts of the areas problem family and of children out of wedlock. While the issue of women in employment in most 193Seee.g. SecondPeriodic Report of Jordan(1998), UN Doc. Eli 990/6/Add. 17, Par.126,where it is stated, inter alia, that: "Cultured Jordaniansfeel that their cultural identity.. .is open to Arab and Islamic culture... ". 194Hamidullah, M, (1977) supra, note 88 above,p. 117-8. 195SeeArt. 16 of the OIC Cairo Declaration on Human Right in Islam (1990).
258
Muslim States has been circumscribed by custom rather than Islamic law per se, the issue of is dictated by Islamic the family strictly religion and wedlock out of the and children is ample room within Islamic law for been has law. As there by Islamic shown, regulated Muslim States to remedy the problem of women in employment and enhance their societal roles.
However, the question of the family and children out of wedlock involves an Islamic
religio-moral
for the of of margin appreciation recognition some and requires principle196
Muslim States as is recommended in the concluding chapter of this thesis.
For those Muslim States that have ratified the ICESCR, this chapter shows that they international law to respect and do have law Islamic they under have an obligation under as Covenant. For the those the recognised under rights social and cultural economic, ensure Muslim States that have not yet ratified the ICESCR, the foregoing exposition shows that law. from Islamic does those them ensuring rights under not absolve their non-ratification The analysis can also be of motivational value towards their ratification of the Covenant to international in the to the ensure universal guarantee of economic, co-operation participate social and cultural rights.
191Seep. 238 above.
259
PART THREE:
Case Studies
CHAPTER
8
Case Studies of International Human Rights Policy and Practice in Modern Muslim States
INTRODUCTORY
REMARK
A theoretical comparative between international human rights law and Islamic law is of limited value without an examination of the actual practice and policy of Muslim States in that regard. This chapter will thus examine the State practice of selected Muslim States as international human in Muslim States. rights modern on studies case In their practical application of Islamic law, the modern Muslim States may be roughly fully Islamic law into: (i) State law, (ii) that countries apply as countries where categorised for interpretation is the Shari the underlying principle of statutory laws and codified the ah legislation, (iii) countries that apply only Islamic personal law as part of State law, and (iv) do have Islamic law State law that complete apply adopted secularism and not as at countries all-'
As it is impossiblewithin the limits of this thesis to examine the State practice of all the Muslim States, six countries have been selected within the categories identified above for case studies.
They are the Kingdom of Saudi Arabia, the Islamic Republic of Iran, the
Republic of the Sudan, the Islamic Republic of Pakistan, the Republic of Tunisia and the Republic of Turkey. These countries reflect almost all the phases of Islamic law application by modern Muslim States?
As observed by Esposito, the vast majority of the modem 3 between fall "secular" States Turkey "purist" the Saudi two Arabia. Muslim and poles of Saudi Arabia from its inception has been applying full Islamic law based on the traditional Sunni (mostly Hanbali) jurisprudence as State law. The Islamic Republic of Iran has also been applying full Islamic law based on the Shi `ah (Twelver Ja ,fari) jurisprudence since Historical Study of Modem Middle Eastern Law" (1978) 26 The American Journal of "Comparative E., Hill and cf. Comparative Law, p. 279 at 294. See also Arzt, D. E., "The Application of International Human Rights Law in Islamic States" (1990) 12 Human Rights Quarterly, 202 at 204; and Karnali, M. H., "Law and Society" in Esposito, J.L., The Oxford History of Islam (1999) p. 107 at 151.
2 The choice of thesecountriesis also informed by the fact that the application of Islamic law has beendirectly or indirectly brought in questionin their reports and argumentsbefore the international human rights treaty bodies. 3 See Esposito, J.L., "Contemporary Islam: Reformation Or Revolution? " in Esposito, J.L., The Oxford History of Islam (1999) p. 643 at 651-652.
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1979. The Sudan re-introduced the full application of Islamic law as State law in 1983 along legal Pakistan has its system. pluralistic also adopted the Shari `ah as its previous with lean interpretation law law. Islamic Tunisia tends to towards a moderate and of supreme law its State Islamic law. Turkey has with many reforms personal as part of only applies formally adopted total secularism and does not apply Islamic law at all as State law, but the Muslim population still follow Islamic norms in their personal and private lives. This chapter international human State the policy and practice of rights within the Islamic examine will law dispensation of these Muslim States. The aim here is neither to compare the selected States in respect of violations or enforcement of international human rights, nor to research 4 in human into the extent of rights abuse any of them. Rather the focus here shall be on legislation, State policies and judicial interpretations in the selected countries as general case States have international human how Muslim to law responded of rights within their studies law. Reference be Islamic human UN bodies' to treaty will of made rights application States In the on where comments available. and monitoring the guarantee of practice international human rights in Muslim States that apply Islamic law, the specific areas of been has constitutional rights, equality and non-discrimination, women's often concern 5 These would thus be the justice. focus followed the main of criminal case and studies rights, by the general representations on human rights by each of the selected States.
KINGDOM
OF SAUDI ARABIA
The Kingdom of Saudi Arabia occupies a very significant position in the Muslim world, being the site for the two most important holy mosques of Islam. It thus claims the status of a 6 State Islamic Islamic that has been traditional described must protect norms, and complete `pure' Islamic legal "7 "closest Being to being Islam the maintaining a system. cradle of as its kingdom has influence in the Muslim the wealth, with great world. Since its coupled and founding, it has generally retained adherence to the traditional juristic treatises of the four ° There are alreadymany constantlyupdatedreportsby different Human Rights Organisationson human rights violations of States. 5 See e.g. HRC, Comments on Iran, UN Doc. CCPR/C/79/Add. 23 (1993) and the December 1998 Report on the Situation of Human Rights in the Islamic Republic of Iran, submitted by the Special Representative of the Commission on Human Rights, Mr. Maurice Danby Copithorne, pursuant to Commission Resolution 1998/80, UN Doc. E/CN. 4/1999/32.
6 SeePart 1, Par. 2 of Saudi Arabia's Initial Report to the Convention on the Rights of the Child, UN Doc. CRC/C/61/Add.2 "The Kingdom Saudi Arabia is 2000, that: March states of 29 the cradle of Islam to which Muslims throughout the which of in Muslims' hearts in It a special occupies place turn as the guardian of Islam's sacredplaces". Seealso Saudi prayer. world Arabian Ministry of Information Internet Website at: http://www. saudinf.com/main/c4.htm [25/2/2001] where the Islamic is Arabia Saudi reiterated. statusof See Hill. E., (1978) supra, note I above, at 295. See also Walker, J.K., "The Rights of the Accused in Saudi Criminal procedure", (1993) 15 Loyola L. A. International and Comparative Law Journal, p. 863.
261
Sunni schools of Islamic jurisprudence particularly that of the Hanbali school in almost all 8 The courts however now issue judgements based its law. State Qur'an the of on and aspects Sunnah guided by and not limited to the opinion of any of the four Sunni schools. 9 The Kingdom has generally followed a traditional and conservative approach in its interpretation 10That approach had reflected in its State law. Islamic from of practice application right and the inception of its participation in the human rights evolution of the UN.
It was the only
Muslim State that abstained in the voting at the UN General Assembly for the adoption of the UDHR in 1948 on Islamic grounds. Its representative at the Committee discussions on the draft UDHR had objected, inter alia, to the provision on religious liberty (Article 18) and the in first (Article 16). The Islamic the that rights marriage was equal on on ground provision law does not recognise the right of a Muslim to change his religion and the second on the I l law from Muslim Islamic that woman prohibits a marrying a non-Muslim man. ground Saudi Arabia's abstention from the adoption of the UDHR was however not to mean a total apathy towards the human rights regime of the UN. To date Saudi Arabia has become a 12 international human least 17 It has however treaties to to relating rights. at not yet party kingdom The follows ICCPR ICESCR. the the or a cultural relativist approach either ratified has human international consistently argued for "a need to develop current rights and to human rights concepts with reference to humanitarian values enshrined in the various Islam leading in the that cultures of world", and and could civilizations play a role religions, that regard by enriching "the concept of human rights through its noble moral values and in its life, way of which rights and obligations were defined in comprehensive principles and "13 it believes in While human just manner. a universal equitable vision and of rights, the a 8 The Saudi Arabian Judicial Council decided in 1928 (1347A.H) that thejurisprudence of the other schoolsmay also be demanded.SeeQadri, A.A., Islamic Jurisprudence in the Modern World (1986) p.464. interest so public where adopted 9 SeeSaudi Arabian Information Website at: http://www. saudinf.com/main/c2.htm [25/2/2001]. 1°Seee.g. Dudley, J., "Human Rights Practicesin the Arab States:The Modem Impact of Shari'a Values" 12 (1982) GA Journal of International and ComparativeLaw, 55.
11The Pakistani representative had disagreed with the Saudi Arabian representative on the first point relating to religious freedom See UN Official Records, 3rd Committee, 3rd Session, 1948-49, Pt. 120; cited in Little, D., Kelsay, J., and Sachedina, A., Human Rights and the Conflict of Cultures (1988) pp. 33-52. 12Slavery Convention (1926); Supplementary Convention on the Abolition of Slavery, The Slave Trade and Institutions and Practices Similar to Slavery (1956); Genocide Convention (1948); Convention on Elimination of Racial Discrimination (1965); Convention on the Rights of the Child (1989); The 1949 Geneva Convention 1; The 1949 Geneva Convention 11; The 1949 Geneva Convention III; The 1949 Geneva Convention IV; The 1977 Geneva Protocol I Additional to the 1949 Geneva Conventions; ILO Convention (No 29) Concerning forced Labour (1930); ILO Convention (No 100) Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (1951); ILO Convention (No 105) Concerning Convention (1957); ILO (No 111) Concerning Discrimination in Respect of Employment Labour Forced Abolition of the Convention Against Discrimination In Education (1960); Convention Against Torture UNESCO (1958). Occupation and Treatment or Punishment (1984) Convention on the Elimination of All Forms of Degrading Inhuman Cruel, Other or and Discrimination against Women (1979). See UN Human Rights Treaty Website at: http: //www, unhchr. ch/html/intlinst. htin htm [25/2/2001] and [25/2/2001] and ILO Conventions Website at: http: //ilolex. ilo. ch: 1567/public/english/docs/convdisp International Humanitarian Law Treaties Website at: http: //www. icre. orrg/ihl [25/2/2001].
SeeSummaryRecord of 30`hMeeting (561hSession)of the UN Commission on Human Rights, UN Doc. E/CN.4/2000/SR.30 of 26 April 2000, Par. 2.
262
kingdom has argued that it "feels no compulsion to adopt" a Western perspective of it, and has thus called for a distinction between "legitimate universal rights" and "rights that are demanded by those espousing a permissive philosophy in a largely secular society". 14
Constitutional Rights
Saudi Arabia affirms the Qur'an as its constitution,15 and did not have any separate bill 1992. Generally formal laws few in to rights prior or of constitution are quite statutory the kingdom. While this can actually make it easy for a flexible interpretation of law and 16 it can conversely make it difficult to determine the actual position of laws, tradition, judicial in based The not on precedents. a system previous absence of a formal especially based legislation the traditional that (tashri the on was apparently view act of constitution God that and thus the enactment of a separate constitution was considered as of was " Shari `ah. A change of position occurred in 1992 with the enactment inconsistent with the Laws Government Arabian Saudi by three the of consisting of statutes passed royal of decree. 18 Of the three statutes, The Basic Law of Government is the main constitutional document, which contains a chapter on rights and duties. This was not considered as new legislation (tashri ) but rather a codification Islamic
Shari `ah applied in the kingdom.
(tagnin) of what already existed within the In his speech introducing
the statutes, the
kingdom's monarch, King Fahd, stated that the constitutional reform was necessitated by the development of modem life and was "to strengthen something which (was) already in despite formal " He document that the before asserted absence of a constitutional operation. 1992, the Kingdom had never known a "constitutional
vacuum" and that "throughout its
been bases it has to ruled according guiding principles and and clear fundamentals to march by s19 judges, those Whatever way one looks at the and all employed ulema state refer. which it, the enactment of the laws represents a new approach to the kingdom's interpretation of the limitation
on legislative powers under Islamic law. This new approach seem to have now
14See Saudi Arabian Information Website at: http: //www. saudinf. com/main/x004. htm and also h! W://www. saudiarabiahumanrights. orR/index. html [25/2/2001] for Saudi Arabia's position on Human Rights. 15See Art. I of the Saudi Arabian Basic Law of Government (1992). See also note 6 above, Part 1, Par. I (2)(ii).
16SeeWynn, L., "Marriage Contractsand Women's Rights in Saudi Arabia" in WLUML, Special Dossier: Shifting Boundaries in Marriage and Divorce in Muslim Communities(1996) p. 106. 17SeeAba-Namay, R., "The RecentConstitutional Reforms in Saudi Arabia" (1993) 42 International and ComparativeLaw Quarterly p. 295. 18(1)The Basic Law of Government;(2)The Consultative Council EstablishmentDecree;and (3) The Regional Authorities EstablishmentDecree. 19SeeKing Fahd's speechintroducing the New Statutesreproducedin Bulloch, J., Reforms of the Saudi Arabian Constitution (1992) pp.30-37.
263
law in legislating "(w)ithout Islamic trespassing the under any way of possibility recognised 20 God law". for function of making the reserved exclusively upon Chapter 5 of the Basic Law21 (Art. 23-43) defines rights and duties within the kingdom first formal "bill be the and attempt of enacting country's a of rights" as considered and can in modem constitutional terms. The inclusion of a "bill of rights" in the Basic Law demonstrates a formal and definite recognition of the concept of constitutional rights within however it Law Article 26 Basic Islamic the kingdom's makes clear that "The of polity. the State shall protect human rights in accordance with Islamic Shari`ah. "ZZ This was reiterated in the introductory speech of King Fahd, that "(t)he pillar and source of the basic statute is been by has Islamic Shari'ah in defining Shari'ah, the the the Islamic guided statute as the in defining the the the of state, and other relationship responsibilities objectives and nature, 23 This was to emphasise that the Shari `ah was still the between the ruler and the ruled". in importance A Basic Law the the of major modern constitutional nation. grundnorm of State definite it the the is that on obligations of and the rights of the statement a makes terms individuals for which the State may be indicted for any violations. The Basic Law contains a list of only a few clear but important rights. Those related to for to the to y24; right security private propert are: right all citizens civil and political rights imprisonment from "except freedom the and restrictions arrest, under and residents; inviolable is declared home "shall law"25 the the to the privacyand not ; right provisions of be entered without the permission of their owners, nor shall they be searched except in cases 26 "(a)ll forms of correspondence, whether conveyed by telegraph, law", by the and specified be (t)hey considered of communication shall sacrosanct, means may not post, or any other be confiscated, delayed or read, and telephones may not be tapped except as laid down in the 27; freedom from criminal responsibility or penalty except in accordance with the law28; law". 31. litigation. the to the to complain30 and equal right right the right to political asylum29; Rights relating to economic, social and cultural rights that appear to be guaranteed by the 20See Faruki, K. A., Evolution of Islamic Constitutional
Theory and Practice (1971) p. 4.
21The English version of the Saudi Basic Law of Governmentused in this researchis the translation available on the Saudi Arabian Information Website at: http:/hvww. saudinf.com/main/c54l f htm [25/02/2001]. 22Article I had preceded with the provision that the Kingdom of Saudi Arabia is a sovereign Arab Islamic State with Islam Qur'an and the Prophet's Sunnah as its Constitution. Holy the its and religion as 23See Bulloch, J., (1992) supra, note 19 above, p. 33. 24 Art. 18 and 19 of the Basic Law. 25Art. 36 ibid. 26Art. 37 ibid. 27Art. 40 ibid. 28Art. 38 ibid. 29Art. 42 ibid. 30Art. 43 ibid. 31Art. 47 ibid.
264
in his family (rights the to Law cases of the of citizen and Basic social security right are: 32 (job opportunities to all abledisability, the to disease, work right age); and old emergency, 33 bodied people); the right to public education34 and the right to health care35. From both in Basic human the international the law contained perspectives, rights rights Islamic and Law are quite limited and incomplete. Many important human rights such as right to life; prohibition of torture, cruel, inhuman freedom freedom degrading treatment; of association and assembly; expression; of or from Basic the excluded rights are women's thought, and religion freedom of conscience and Law.
The Kingdom may wish to contend that these are rights that are already covered and
for basis been declared has Shari `ah the Islamic for the as pillar and which within provided in Basic Law, King Fahd in before instance, 1990 the the For Law. enactment of the Basic freedom "the in kingdom the human that the of answered to rights on a question response individual in this country is secured by the Islamic faith in practice. Expression, rights and duties, as long as they do not harm others, and not violate Islamic teachings or existing rules, 36 However, since the kingdom had taken the bold step towards are permitted". definite bill of which a codification rights, provide of a adopted and constitutionalism State Law Basic it have duties, the the enhanced and greatly would constitutional rights and included have human international in to kingdom all possible rights the of respect of practice important An kingdom `ah Shari the the aspect guarantees. and which under available rights determine It is be themselves the to to what rights are. would human able guarantees rights of in few listed Basic kingdom for the those that to the rights claim either be very contentious Law are the most important rights under the Shari `ah or that those are the only specific rights in Shari `ah human held During the `ah Shari and conferences on rights guarantees. that the Strasbourg between 1972 City, Geneva 1974 Vatican Paris, and and under the Riyadh, in Council Strasbourg Europe Justice, Arabian Ministry Saudi the the of of and of auspices jurists in Geneva, Saudi Arabian Islamic Churches Council World eminent and of the human Shari 'ah that that the had guaranteed comprehensive rights confirmed scholars 37 in law. list Basic the the of rights contained present exceeds obviously 32Art. 33Art. 34Art. 35Art.
27 28 30 31
ibid. ibid. ibid. ibid.
36SeeBBC, Summaryof World Broadcasting, 10Nov., 1990 ME/0918 A/1 cited in Aba-Namey (1993) note 17 above,p. 325. 37For a report of the proceedings of the Conferences See Al-Dawalibi, M. M., Nadäwät 'Ilmiyyah Hawl al-Shar? 'ah ald). al-Islam (Arabic) (n. See Conference Huqüq Wa also al-Insänli of Riyad on Moslem Doctrine And Human Islämiyyah Rights In Islam [March 23,19721 at Saudi Embassy News Website: http: //www. saudiembassy. net/press release/hr72.htm] [7/03/2001].
265
The codification of all the possible rights guaranteed by the Shari `ah in the Saudi Basic law would certainly have produced a more complete bill of rights. Such an approach would have provided a positive guarantee by the State assuring that individuals could actually seek Shari for `ah. From their the rights guaranteed any of all under of an violation remedy international human rights perspective the need for the inclusion of all possible rights is in Arabian Law further demanded fact Saudi Basic Shari `ah by by the the the guaranteed international has human rights kingdom the two the major that not yet ratified either of full `ah have Shari Such the rights would of provided a constitutional codification covenants. in definite the of reference event of any violations of the rights. statutory point and guarantee With regard to enforcement, the Basic Law does not provide for any independent in but for Article 43 the that: stated rights, provides mechanism enforcement "The "Majlis" of the King and the "Majlis" of the Crown Prince shall be open to all have to who may a complaint or a grievance. Every individual anyone and citizens shall have the right to communicate with public authorities regarding any topic he discuss. " to wish may
Bulloch has observed that this provision is "plainly a codification of the old tradition of it does if he but feels himself wronged, to tribal a right give any citizen redress the meeting, help. "38 The be in this he to if adequacy of provision seek may questionable wants or human from direct violations, especially where rights such violations of arise cases complex is, Crown King Prince be find That human State. the to or would gracious enough of acts itself? Islamic law, Under Board Grievances traditional against a of or violations rights Complaints Tribunal (mazälim) existed before the enactment of the Basic Law, with to hear and investigate grievances and complaints of individuals against 39 however It divested jurisdiction the to officials. and was agencies of entertain government in State 1982.40 That be have deviated to act of any restriction can said against grievances
jurisdiction
from the classical mazd1im rules, which gave wider powers that covered even the acts of the 41 Article 53 of the Basic Law however provides that: "The law defines the structure rulers. jurisdiction and
of the Court of Grievances". This provision is exploitable to re-assert the
38Bulloch, J., (1992) supra, note 19 above,p.6. 39The Board was establishedby DecreeNo.2/13/9759 in 1955.SeeLong, D.E., "The Board of Grievancesin Saudi Arabia" (1973) 27 Middle East Journal, p.72. 4°SeeArt. 9 RevisedRegulationsof the Board of Grievances.Decree M/51 of 1982.Seealso Aba-Namay,R., " (1993) 321. 17 p. above, note supra, 41See Chapter 4, pp. 66-68 above on Mazalim. See also Long, D. E., (1973) supra, note 39 above.
266
Court Grievances (mazälim) defined the traditional of of as prerogatives under wide 42 law. Islamic traditional Despite
obvious procedural
difficulties
and vagueness, it
is deducible
from
a
Basic Articles 43 47 Law, by Bulloch, the that "any and of as observed of combination transgression (at least upon the rights contained in the Basic Law) can be taken up in the 43 This apparently provides a framework upon which the enforcement of human Courts" however That be humanitarian require sincere would political and established. can will rights from the State and courage on the part of the courts in redressing the violation of rights. The practical
questions that arise here are: (i) whether the victims
of violations would be
in Basic law Courts, (ii) to test the the the provisions of enough and what type of courageous 44 Courts if do. the The above the they interpretations would provisions even place on interpretations imagines Basic Law. However, the the of provisions positive of analysis is in human fact kingdom by that the the advocacy not common rights and coupled going hard-line interpretations the the the courts, of adoption approach of conservative of the with Shari `ah could certainly claw back any rights that may be apparent in the Basic Law. For instance, the religious volunteers known as the mutaw `ah responsible for maintaining infringe to the reported within society are and norms sometimes morals upon the religious impose interpretation "in "45 Islam their They are to own strict order of people of civil rights . incarcerate for homes, harass in to people partying, raid private and people public reported 46 behaviour, dressing Complaints against such violations could t. for improper and e. c. Articles 36 37 Basic brought Law be the to test the ability of the and under of certainly 47 in the Basic Law. the the Courts constitutional rights guaranteed under enforcement of
Equality and Non-discrimination
The Saudi Arabian Basic Law of Governancedoes not contain a specific provision on its initial However Convention the on report non-discrimination. and on the Rights equality its Child follows: the on equality policy and non-discrimination as stated of 42Seeibid. on the classicaljurisdiction of the Court of Grievances(mazälim). "' Bulloch, J., (1992) supra, note 19 abovep. 7. Article 47 of the Saudi Basic Law provides that: "Both citizens and foreign litigation. The necessaryproceduresare set forth by the law." to have right equal an residents 44No suchcasehas so far beenrecordedsince the enactmentof the Basic Laws in 1992. 45Aba-Namay, R., (1993) supra, note 17 abovep.326. 46ibid. 47Art. 36 provides that: "The Stateshall ensurethe security of all its citizens and expatriatesliving within its domains.No individual shall be detained,imprisoned or have his actions restricted except under the provisions of the law." and Art. 37 be They inviolable. "Houses shall not enteredwithout permission of their owners,nor shall they be that: are provides law." by in the specified cases except searched
267
"In this context, (i. e. non-discrimination) it should be noted that the System of Government in the Kingdom of Saudi Arabia adopts two important principles: (i)
Justice, equality and non-discrimination between kin and strangers, and nonbias towards the strong at the expense of the weak ('God commands justice, the doing of good... '). In the words of the Prophet: "By God, if my daughter Fatima were to steal, I would cut off her hand. "
(ii)
The application of Islamic law to all persons. Rights are guaranteed equally to all individuals irrespective of their race, sex or other considerations. The law is applicable to all without partiality and all the judicial, social and cultural systems are based on this principle. Moreover, the Kingdom shows due concern for children deprived of a family environment or afflicted with a disability with a view to ensuring their enjoyment of all their rights on an equal footing with other children. "4$
It then concluded that Saudi society is based on justice and equity and "strongly rejects discrimination. forms of all
It never discriminates between the strong and the weak, man,
All freedoms them the of enjoy rights and child. guaranteed by the regulations, or woman based on Islamic law, which are applicable in the Kingdom without discrimination
of any
kind, irrespective of their colour, sex, ethnic origin, age or religion. "49 The country's policy of non-discrimination
was reiterated at the 56th Session of the UN Commission on Human
Rights by the Saudi Arabian deputy minister for foreign affairs, who stated inter alia that in Saudi Arabia, "equal rights were granted to citizens and foreign residents", "exercise of freedom of expression and assembly was not prohibited, providing it was neither prejudicial detrimental to public morals"; "Non-Muslims nor to public order
enjoyed all the basic rights
Muslim (and) had full freedom to freedoms they in to their guaranteed residents engage and in "No had been private"; non-Muslim ever observances subjected to prosecution or religious indeed, it to grounds; religious was on a punishable offence subject them to any punishment 50 harassment". While these assertions may be controvertible in practice, they interference or State demonstrate the doubt country's recognition as policy the obligation of equality and no non-discrimination
and can serve, at least as a moral basis, for challenging violations of the
State. by the principle Women's Rights The Basic Law is also silent on the rights of women. It is obvious however that Saudi Arabia implements a hard-line and conservative interpretation of Islamic principles regarding 48See note 6 above, at Par. 40. 49ibid., Par. 45.
268
the role and participation of women in society. It is the only Muslim State where women are based interpretations driving from cars on extended of protecting public morality prohibited dignity the of women. and
Before 1990 the prohibition
of women from driving was not
backed by any specific legislation but was a well-known practice in the kingdom.
In 1990
demonstrated by driving in in their Riyadh, the women cars capital professional city, some 1 ban. The The led issuance the to the women were arrested. protest of of a legal violation by Grand Council kingdom's Ulamä (fatwä) be the that of stating women should not opinion Shari drive because `ah for the the protection of women's dignity and to provides allowed 52 dignity harm driving the to therefore of women that exposes and was un-Islamic. Subsequent thereof, the Ministry
of Interior issued a formal directive prohibiting
women
from driving and stating that any woman who did so would be punished appropriately to 53 deter others. Before the driving demonstration, the women had in a letter sent to the governor of the Riyadh, dignity the challenged moral excuse of protecting city, women's as basis to capital driving. for from They interpretation them sought a more moderate of the Shari 'ah prohibit Prophet's Tradition, Four Rightly Guided Caliphs the the the practice of cited also and and that of the "early believers" to support their own claim that driving by women is not 54 by its The argument of the tolerant teachings". "something ruled out our religion and in Muslim States) (which in that the would stand valid other against of authority women Saudi Arabia, demonstrated the differences that could arise between a hard-line and a Shari in interpretation 'ah Muslim States. Answering the from of modem questions moderate Committee members during the consideration of its initial report on the Convention on the Rights of the Child, Saudi Arabia's representative, Mr. Al-Nasser, confirmed that "there was from driving but "the text that prohibiting a woman a car" scholars (in Saudi religious no Arabia) had established general principles designed to protect the stability of society and to He further its "When traditions". in favour that: the and stated norms majority were preserve 55 in be traditions, the to that rules would amended reflect change". of a change existing
50SeeUN Doc E/CN.4/2000/SR.30 of 26 April 2000, Par. 6 and 7. s' SeeAba-Namay, (1993) supra, note 17 above,p.300. 52See e.g. Zaraboso,M. A. (Trans) Islamic Fatawa Regarding Women,(1996) p.310.
S' See e.g. Aba-Namay, (1993) supra, note 17 above, p. 300, n. 20 See also Doumato, E. A., "The Ambiguity of Shari'a and in in Saudi Arabia" Afkhami, M., (ed. ) Faith and Freedom, Women's Human Rights in the Muslim `Rights' Politics of the World (1995)p. 135 at 139-140.
54SeeDoumato, E.A., (1995) ibid, pp. 139-140.
55See Summary Record of the 688` Meeting of the CRC: Saudi Arabia, UN Doc. CRC/C/SR. 688 of 24/10/2001, Par. 2.
269
In the sphere of personal status law, the traditional jurisprudence is still the applicable 56 A conservative application of the traditional interpretations of the law in Arabia. Saudi law does, from international human rights standards, suppress the rights of women in many 57Wynn, in her research on women's rights in Saudi Arabia, identified that ways. unlike other Muslim States Saudi Arabia "has not had a significant legal or political debate over personal " She law impinge that the that women. observed affecting most of rules on the rights status informal of women are
and traditional.
She however established that Saudi women,
especially the urban middle class women, are now more aware of their Islamic rights and different improve lot Shari in `ah to their the strategies adopt within matters of subtly 58 labour is This and market participation. marriage, not unconnected with the education, increased level of female education in the kingdom, and their exposure to the views of many Muslim
women's
rights advocates who propose a moderate alternative
interpretations of the Shari `ah to enhance women's rights in the Muslim
to hard-line world.
It is
interesting to observe however that statements have began to emerge from within the Saudi indicate to dialogue towards expressing what seem a move authority a public on the ruling in Saudi In Crown Prince Abdullah Ibn Abdulthe society. a speech, recent women of role Aziz, who is a Deputy Premier and Commander of the National Guards, fired what has been described as "the first trigger for the dialogue on the Saudi woman and forward moving of her role (sic)". The Crown Prince was quoted to have expressed the need to re-examine the Saudi towards their He "We women religion and country. of said: will not allow role in Saudi be Arabia diminish that to the status of our mothers, sisters and we, said anything daughters," and concluded that "we need a dialogue that takes the social relations into dialogue, him, "will to that according a consideration"
lead to defining the role of women
her her towards the to attitudes to and consider changing related to the man and therefore and 59 in formation him the With driving to with of society". respect women participates cars, indicated have Saudi to that the obstacles were more technical was official reported another than social or religious, such as the present non-availability 60 drivers. female with
of female police officers to deal
56e.g. in marriage,divorce, inheritance,property rights, e.t.c. 57SeeChapter6 pp. 109-16above. s$Seegenerally Wynn, L., (1996) supra, note 16 above,p. 106. S9See"Saudi Women Have a Role in Society and the Western Model is not Applicable" Ain al- Yaqeen,WeeklyArab Political Magazine, April 30,1999, Online Edition at: htm [25/2/2001] hgp://www. ain-al-vageen-conVissues/19990430/featSen. b0ibid. In SaudiArabia public intermingling betweenmen and women is very restricted, exceptduring the pilgrimage due large to the presence the are relaxed of rules numbersof foreign pilgrims in the country. when seasons
270
In his submission before the 56th Session of UN Commission on Human Rights, the
Saudi Arabian deputy foreign minister statedin respect of women rights that: "All legislation applied equally to both sexes. Indeed, the Islamic shariah did not discriminate between men and women with regard to their duties and obligations. His Government was endeavouring to ensure that women enjoyed all their legally recognized rights and was pleased to report that educational enrolment among girls had declined female illiteracy 15 95 to to sharply per cent. and percent amounted The state also provided grants and appropriate accommodation for female students... Education - especially female education- constituted the cornerstone for the 9961 development society. of and advancement
To further demonstrate its recognition of women's right under international human Against All Discrimination Convention Forms Against Arabia Saudi the law of ratified rights Women on 7 September 2000 with the following reservations: "(1). In case of contradiction between any term of the Convention and the norms of Islamic law, the Kingdom is not under Convention. (2). The Kingdom does the terms the to of not contradictory observe obligation 2 of article 9 of the Convention and paragraph 1 of article by bound itself paragraph consider
62 " 29 of the Convention. .
Islamic Criminal Justice Criminal justice is conducted in Saudi Arabia according to strict Islamic law. All the 63 As analysed earlier, one of the safeguards hudüd punishments are enforced. against the is highest law degree Islamic fairness due that the of under and punishments severe criminal includes be innocence be This that the trials law the must ensured. public, must of process of is be be the guilt proved, until accused presumed must must given every person an accused be beyond iota doubt and the rule of law defence, proved every of guilt must of opportunity TM human have however International be rights watchers questioned respected. generally must justice in in Saudi Arabian Particular fairness these the level criminal respects. the of in the kingdom, which makes the violation of been trials has to closed-door made reference 65 identified in As fair Chapter 6, Islamic law trial earlier possible. of other principles 61UN Doc. E/CN. 4/2000/SR. 30 of 26 April 2000, Par. 9. 62See UN Human Rights Treaty Website at: asp [26/2/2001]. http"//untreatytin. ora/ENGLISH/bible/engiishintemetbible/partI/chapterlV/treaty2. 63See Chapter 4 pp. 72-80 above. 64See Chapter 6 pp. 114-51 above. 65See e.g. Amnesty International, Saudi Arabia, Behind Closed Doors: Unfair Trials in Saudi Arabia (MDE 23/08/97) and Human Rights Watch, "Saudi Arabia" in World Report 1999. See also Walker, J.K., (1993), supra, note 7 above, at 874; H., "Courts, Law, Justice and Criminal Trials in Saudi Arabia" (1987) 11 International Journal of R. Moore, and Comparative and Applied Criminal Justice, No. 1., p. 61 at 66.
271
for in be or protection of of state security trials reasons that except public must all requires trials to Thus not only violates closed criminal resort complete a morality. public order and is departure from fair but fair the trial trial, human ordinary also a international of rules rights 66 Saudi Basic Law Article 36 justice. Although that the Islamic of provides criminal rules of have imprisoned the be detained, their individual restricted except actions under or "No shall in for habeas is law", can there which effect corpus, the provision specific no of provisions 67 investigated periods detention for are or cases prepared. criminal while unlimited allow justice Saudi Arabian it been has that the criminal system For the above reasons argued 68 individual". the rights of the the for the "primarily the expense of at state of might caters To demonstrate human rights consciousness in its criminal justice system Saudi Arabia in in Criminal Procedure Rights Human "Protection the document titled issued and of has a judicial "description (2000)"69 System Judicial of criminal the a and giving Organization of for human Arabia Saudi the in Kingdom the protection of rights and provisions of procedure during the three well-known stages of criminal proceedings: the pre-trial stage; the trial; and 70 is in its introduction Kingdom document inter that the The alia, trial states, stage". the post its justice in It human that to system. criminal points out the rights respect need conscious of its in development being "are consistent with a manner amended many of the old regulations draft draft the "the fields" that and civil procedure and code criminal of in all codes and into force God legal the will soon willing, enter which, profession, regulating exercise of development highly in criminal procedure in their significant following approval, constitute a Kingdom is Arabia Saudi the that the Kingdom attentive concern express clearly and of the human for internationally which with rights are consistent of principles recognized showing (emphasis "71 Shariah. Islamic added) the The document gives a detail of the Kingdom's rules and regulations designed to ensure investigation, in human criminal examination, of criminal respect rights the protection of in It judicial judicial special and safeguards. states penalties safeguards, structure, trials, "obtained by investigation that evidence unlawful means and examination respect of criminal I Seenote 64 above.
67See e.g. Human Rights Watch, Empty Reforms, Saudi Arabia's New basic Laws (1992) p. 26; Walker, J.K., (1993) supra, 10 76. Under Principles J., (1982) Arrest, Temporary Dudley, the 872; above, p. supra, note of 7 and p. note above, Confinement and Preventive Detention Regulations issued in 1983 by the Ministry of Interior, detainees could be held for a detention may be reviewed by the regional governor of minister of interior, days their fifty-one which upon period of Watch, See Human Rights "Saudi Arabia" in World Report 1999. be held indefinitely. detainees could otherwise 68See Amnesty International, Behind Closed Doors, supra, note 65 above, p. 1. 69KSA Ministry of Foreign Affairs, Protection of Human Rights in Criminal Procedure and in the Organization of the Judicial System (2000). For an Official English Translation of this document See Saudi Embassy News Website at: htt, 2://www. saudiel-nbassV.net/press release/hr-judicial-l-menu. html [7/03/2001].
70ibid. 3`dPreambularParagraph. 71ibid. Introduction, Last 3 Paragraphsthereof.
272
inadmissible is (the) human that and accused person" rights of of violation a constituting for is "to that the taken person responsible such violation ensure are necessary measures brought to justice since the Kingdom
has issued strict instructions prohibiting
the ill-
investigations be harassment that and stipulating must persons of accused treatment or 72 State The "Society's in that: acknowledges manner". and proper a meticulous conducted freedom be the to the the safeguard with need and to reconciled must guilty punish right dignity of the accused and their right to defend themselves" and that the accused person has lawyer legal " Articles 14,48 himself "avail the to or representative. of a services of the right Statute Public Investigation Schedule the the to Regulatory 50(1) of and appended of and Prosecution Department, recognises the accused person's right not to be separated from his lawyer or legal representative during interrogation and the right to contact his lawyer or legal 73Article 59 of the Administrative Rules of Procedure of Judicial Bodies also representative. legal has to "Every that: right appoint a an unrestricted counsel". person provide Regarding public trials, the document refers to Article 33 of the Statute of the Judiciary in be held decides hold "Court-hearings the to that public unless court shall which provides family in In to in privacy or public morality, order. all cases, safeguard order them camera the judgement
shall be handed down at a public
hearing".
Also
Article
70 of the
Administrative Rules of Procedure of Judicial Bodies provides that: "Pleadings shall be made in public except in circumstances in which the court believes that confidentiality is required in the interests of morality" and Article 15 of the Rules of Procedure of the Board of Grievances provides that: "Hearings shall be held in public unless the Division believes that in the interests of morality or in order to safeguard public order. is required confidentiality 74 judgement be handed down hearing". Public in the must at a public However, all cases, hearing is stated to mean that "everyone can attend and observe the trial proceedings without in the to the than morality public or need safeguard maintain order other any restriction 75 The document also states that "litigants are not required to pay fees or costs in courtroom". " if lose This hearing, legal they their the the case. strengthens even principle of of respect 76 it "justice being by law it". those before to the as prevents monopolized able afford equality The importance of the practical implementation
of the rules is acknowledged in the
document which states that: the of conclusion
72ibid. I. The Pre-Trial Stage: (2) Criminal Examination in the Kingdom of Saudi Arabia, Par. 8.
73ibid. (a) The Characteristicsof Criminal Examination, Par. 2 and 6; and (b) Remandin Custody, Par.4. 74ibid. II. The Trial Stage,Par. 6(c) The Public Nature of Hearings. 73ibid.
76ibid. II. The Trial Stage,Par. (6)(b) Exemption from Fees.
273
"The Kingdom guided by the provisions of the Shariah, has established bodies for directives has justice that and promulgated rules and the administration of criminal for the the and constitute cornerstone procedure of criminal stages all regulate legislative protection of human rights in the Kingdom. In order to ensure that these texts do not provide only theoretical protection, lacking in essence and devoid of Kingdom in the judicial the the as natural guardian of rights acts authority substance, directives by those freedoms with rules and compliance strict and ensures and legality that thereby the ensuring procedure, of criminal stages of all monitoring into from being far on are actually put texts, paper, as mere provisions those regarded 77 practice"
Saudi Arabia ratified the Convention Against Torture and Other Cruel, inhuman or however 1997. It September 23 Punishment Treatment entered reservations on Degrading or jurisdiction Committee Against denied the 3(1)78 the Article by bound be of and also not to 79 by instigated These Convention. 20 Article the are obviously reservations Torture under of Islamic Western bodies that UN treaty some criminal nations most and the positions of inhuman law international torture, the of cruel, and prohibition violate punishments kingdom 20 Article The to thus the treatment saves reservation degrading and punishment. defend Against Torture Committee before to the the being enforcement of from called in Saudi Arabia. are applicable Islamic criminal punishments which
The reservation to
Article inhibiting that to prevent return of is 3(1) on reliance at aimed Article also apparently being in danger be "would to through the torture" they that subjected of offenders on grounds 80 Arabia Saudi the that Islamic opposes view strongly punishments. criminal application of inhuman degrading. torture, the are of or or prohibition Islamic criminal punishments violate Arabians forty lashes Saudi instance "(m)any for tell that that: been would you has It claimed $' in in jail". low The the humane two than rate of crime and violence far or a year more are 82 justification. been strongly advocated as Kingdom has also Saudi Arabia occupies a position in the Muslim world that is comparable to that of the 83 be Its therefore in Christendom. See should approach understood as an conservative Holy traditional the to conserve attempt
and orthodox practices of the Islamic
faith. The
77ibid. Conclusion, Par. 2.
78Art. 3(1) provides that "No state party shall expel, return ('refouler) or extradite a person to another State where there are he be in danger being believing for that to torture" of would subjected grounds substantial
79SeeUN., Multilateral TreatiesDepositedwith the Secretary General, Statusas at 31/12/99, Vol. 1, Part 1, Chapter Ito XI, 214. tOSee
e.g. the case ofJabari
Turkey under the European Convention. (2000) 9 Butterworths Human Rights Cases, Part v. .
1., p. l.
$i This claim is quoted from the Website on Saudi Arabia's position on Human rights at: htni [visited 25/2/2001]. ht!p: //www. saudiarabiahumanriphts-orglghuinanr. $Zibid. 83Seee.g. the similarity in tone of the Statementsof the Delegation of Saudi Arabia and the Delegation of the Holy Seeat Website: http://www. unhchr.ch/html/menu5/d/statemnt/saoudi. Rights Human htm Conference World at on Vienna and the htni respectively [25/2/2001]. hiip: //www. unhchr.ch/htmi/menu5/d/statenint/hoiysce.
274
identity be instrument Islamic to was, and continues and a culture powerful of of preservation legitimacy
for the Saudi ruling authority. While
the political
authority endeavours to
demonstrate that it is committed to the international human rights objective of the UN, it is the traditional the of censorship of conscious very also
Ulamä' who are considered by
Islamic The Ulamä' traditions the of and preservers and custodians norms. actual as society in the the themselves society and a position to reproach the conscience of as consider political
in Shari `ah the transgressing case of any wholesale adoption of of authority
international norms that completely overrides traditional Islamic practices. The State thus as law in its Islamic on grounds of reservations ratification of a matter of practice usually enters international human rights treaties to the effect that the government of the kingdom will implement international conventions in a manner that does not conflict with the Shari'ah or Islamic law.
Reservations are generally permissible under international law where not
it by incompatible be treaty to the that a and subject also rule must not prohibited specifically 84 law But Islamic Saudi Arabia's the treaty. the of considering purpose as and object with domestic law, the question would arise as to whether such general reservations are not international law international invoke "may that to treaty the a rule party an not conflictive of 85 its justification for failure its internal law to perform a treaty". as the provisions of
General Representations on Human Rights Recent representations on human rights by the Kingdom of Saudi Arabia reiterate its international human October to the In 1998, the rights stance regime. relativist cultural kingdom submitted its first report to any international human rights treaty committee, i. e. its 86 Child. Convention Rights The very comprehensive report the the initial report on the of on law fact Islamic "considers human that be to the the to observance of rights extensively refers duties"87 "Saudi Arabia by that that the ordained and entails worship abides of act an teachings of Islam in the field of human rights. "88 It further buttressed "its deep-rooted faith 89 in by reference inter alia, to the rights dignity Islam", in human rights and as prescribed Government its its Laws Basic of and ratification under provisions
of the OIC Cairo
84See Art. 19 Vienna Convention on the Law of Treaties (1969), 1155 UNTS 331. See also General Comment 24 of the HRC on Issues Relating to Reservations, UN Doc. CCPR/C/21/Rev. I/Add. 6 of 2 November, 1994. eSSee Art. 27 Vienna Convention on the Law of Treaties (1969), 1155 UNTS 331. See also e.g. Lijnzaad, L., Reservations (1995) Ruin? 320-324. Ratify Treaties, Rights p. UN-Human and to
86UN Doc. CRC/C/61/Add.2 of 26 March 2000. $7ibid., Par. 9. $$ibid., Par. 13. 89ibid., Par. 14.
275
Declaration of Human Rights in Islam. With respect to its judiciary, judiciary "the that also
in the Kingdom
the report contended
shows due regard for human rights since it is
important, in the interests of security, peace of mind and personal dignity, that everyone is from injustice, he fully feel that there are regulations to protect him that protected should him be that taken at face value any accusation made against or and others will not society and but will be duly investigated and verified. "90 The Chairperson observed after the session on the consideration of the report that: "While the Committee had not always been in agreement interpretation Arabia's Convention, Saudi the of of she expressed appreciation aspects with 91 delegation's for the co-operative approach". In its Concluding Observations, the Committee "Noting inherent that: the in tolerance Islam, universal values of equality notably and stated the Committee observes that narrow interpretations of Islamic texts by State authorities are impeding the enjoyment of many human rights protected under the Convention" 9z . At the fifty-sixth session of the Commission of Human Rights in April 2000, the Saudi Arabian deputy minister for foreign affairs, Prince Torki ben Saud al-Kabeer, had stated, inter alia, that Saudi Arabia "could boast outstanding human rights achievements and looked 93 improvement". In that respect he observed that the country has forward to making ongoing investigating for individual torture allegations a mechanism of and other abuses established in fulfilment of its obligations under the Torture Convention, and had invited the UN Special Rapporteur on the independence of judges and lawyers to conduct an in situ mission to Saudi Arabia. The Saudi Arabian public was, according to him, also "being sensitized to human 94 being humanitarian the " the He also placed on application of emphasis principles. rights, fact Saudi Arabia had its for that the to submitted candidacy membership of the UN referred Commission on Human Rights and that this demonstrated "the importance it attached to international cooperation on human rights issues."95 As is the case with every State Party report to international human rights treaties the be for the taken assertions are of not granted and are contestable and veracity practical important The from these representations however to point established verification. subject is that there is demonstration of a State policy by Saudi Arabia that it recognises an international human in The however to of respect rights. country also continues obligation law in its Islamic to that regard pursues a cultural relativist and commitment emphasise 90ibid., Par. 16.
91See note 55 above Par. 90.
92CRC Concluding Observationson Saudi Arabia (2001), UN Doc. CRC/C/15/Add.148 of 26/1/2001, Par. 6. 93UN Doc. E/CN.4/2000/SR.30 of 26 April 2000, supra, Par. 3. 94ibid., Par. 3 and 4. 9s ibid.. Par. 4.
276
has "some It human international that its in expressed concern rights policy. argument in have difficulty human international to the understanding appeared community members of declared has "a for dialogue Islam" thus the need constructive and context of rights within human to the a with view ensuring protection of cultures, the and various civilizations among dialogue demand s96 Such human a would certainly also a constructive rights. person and Islamic more moderate
law approach on the part of Saudi Arabia
for substantive
in As demonstrated in roles society. rights and respect of women's reconciliation especially by the representations of the ruling authority, the country's recent practice tends to move direction. in that cautiously slowly and
THE ISLAMIC
REPUBLIC
OF IRAN
Iran was declared an Islamic Republic in 1979 after the revolution that ousted the Shah 97 Since then Islamic law based on the Shi `ah (Twelver Ja fart) school of monarchy. jurisprudence has been applied as State law in Iran. A study of the resolutions of UN General list States has Iran HRC that the the the of on attracted many puts Assembly and reports of be human While there their may political rights practice. questioning reports and resolutions 98 has been implicitly law Islamic for the this, either expressly or application of reasons
human in from has Iran 1979 factor to that of violations rights to contributed referred as a Republic. Islamic became it an when From its inception, the ideological stand of the Islamic Republic of Iran revealed an in international hegemony Western the the the to nations existing of intention challenge Republic, Imam Ayatollah Khomeini, criticised the existing leader first the The of system. international order, which he argued, was controlled by the West and East under the (USA) Soviet Union respectively. The States America United the the and of domination of Iran him, the thus to world's contemporary blocks, of problems. were sources according two West East, Islam" (lä lä "Neither the nor only wa of garbiyyah slogan non-aligned adopted Islämiyyah) indicating its intention to strictly follow an Islamic jamhüriyyah sharqiyyah, 99 ideologies both dominating West bitterness East. The the the the to of and policy opposed because West, USA it the Iran the the however particularly against greater opposed was 96 ibid., Par. 10.
97For a backgroundon the Islamic Revolution Seee.g. Monshipouri, M., Islamism, Secularism,and Human Rights in the Middle East (1998) pp.171-174,and Keddie, N. R., Iran and the Muslim World: Resistanceand Revolution (1995). 98See e.g. Statement of Iran representative, Mr. Hossein Rezvani, at the 51StSession of the 3`d Committee of the UN Mission Islamic Nov. 1996, Permanent Rep. of Iran to the UN Website at: 29, the of Assembly on General
httn"//ww
html[25/2/2001]. int/iran/statements/3ga/3ga51001. un
277
revolution.
This affected Iran's attitude towards the policies of the UN, especially its
international human rights objective, which were seen as representing ideologies of the Western nations headed by the USA. Thus for instance, Imam Khomeini was quoted as describing human rights as "nothing but a collection of currupt (sic) rules worked out by Zionists to destroy all true religions. "100 Imam Khomeini
was very cynical about the
"champions" of international human rights, particularly the USA and Britain. In one of his he had declared Iranian to Iranian the the the people as revolution of wake speeches at follows: "All the miseries that we have suffered, still suffer, and are about to suffer soon are have Declaration Human heads by that the those the signed of countries of caused Rights.. The U. S. is one of the signatories to this document.... But see what crimes . America has committed against man... What we have said is true not only of America but also of Britain, another power that signed and ratified the Declaration of Human Rights... ". He concluded that: "The Declaration of Human rights exists only to deceive nations; it is the opium of the masses."101
As noted in Chapter three, these responses were not practically translated into a total international human but international law the or rights only per se, principles of rejection of "big the the of powers" who were seen as enemies of policies against protest a represented fact despite is by Iran This the those Islam. that criticisms, evidenced of and the revolution in its international law foreign to to principles relations even and rely on appeal continued ideology did Sarvenaz Bahar, Imam Khomeini's States. In Muslim the of words with other not practically
translate "into
an absolute rejection of all international
principles
and
international instruments on a have but premised any reliance on such rather organizations, 102The position of Iran was therefore that international human law". 'a Shari conformity with Shari `ah. be the the only scope with within of complied rights would After the revolution in 1979, the religious scholars of Iran differed with respect to the interpretative approach of Islamic law to be adopted by the State. Bourojerdi has observed into "were those two traditional major camps: who sanctioned the split that clerics jurisprudence (fegh-e-sonnati) and those who advocated the need for a more dynamic jurisprudence (feqh-e puya) capable of dealing with the contemporary, public, and non103 facing Islamic Although Shi jurisprudence `ah favours the the umma". challenges esoteric "See Rajaee, F., Islamic Values and World View: Khomeyni on Man, the State and International Politics (1983) pp. 75-77. 10°See Mortimer, E., "Islam and Human Rights" (1983)12 Index on Censorship, No. 5 (Oct. ), p. 5. 101See Algar, H., (Trans. ) Islam and Revolution: Writings and Declarations oflmam Khomeini (1981) p. 213-214. 102Bahar, S., "Khomeinism, the Islamic Republic of Iran, and International Law: the Relevance of Islamic Political Law Journal, No. International 1,145 Harvard 33 (1992) at 177. Ideology" 103Boroujerdi, M., Iranian Intellectuals and the West (1996) p. 166.
278
leadership (juridical the theologians the ijtihäd ruling reasoning) greatly, under application of jurisprudence hard-line Khomeini traditional Imam on and adopted mostly a relied of interpretative approach to Islamic law. Moderation and dynamism were deemed synonymous with Western culture, which the regime was advocating against, while traditionalism was Islamic in the the the to the of proper norm re-establishment and culture road as considered Republic. This may be interpreted as a consequence of the initial zeal of the revolution and Islamic internal that threatened the the sustenance pressures of external the many and Republic. This led to some harsh implementation of Islamic law, especially as a tool against the opposition within the Republic, presumably to instil fear and deter the opposition. This international human from in the rights watchers criticism respect of of wave a attracted 104A section of the Iranian law. Islamic the clergy was of also critical of application country's harsh application of Islamic law. Ayatollah Taleghani was quoted to have warned that: "The most dangerous of all forms of oppression are laws and restrictions forcibly This is what the Monks, through imposed on people in the name of religion. did in the the name of religion. the with all people classes, ruling with collaboration This is the most dangerous of all impositions, because that which is not from God is thrust upon the people to enslave and suppress them and prevent them from evolving, depriving them of the right to protest, criticise and be free. These very chains and (Muhammad) destroy.... Prophet Any to the the came which ones group are shackles that wants to restrict people's freedom ... to criticise, protest, discuss and debate, does not comprehend Islam". 'os
Due to their opposing views, some liberal clerics of the State were considered as fell leadership its Republic due hard-line they the then to the and out with new of saboteurs 106In recent law. Islamic interpretation and application of years however, there has been a Islamic Republic State Iran, international in law the the policy of of regarding shift gradual in human from what it used to be during the first international rights particular, and generally decade of the revolution. Although the position of Iran has remained unchanged with regards to its commitment instrument State it has its from former hard-line `ah Shari of policy, shifted the as an to international UN law the that to with and co-operation of principles, especially position Khatami elected in 1997.107 Muhammad President under 104Seee.g. Amnesty International, IRAN Briefing (1987) (MDE 13/08/87) and IRAN: Violations of Human Rights (1987). "'See Irfani, S., RevolutionaryIslam in Iran: Popular Liberation or Religious Dictatorship? (1983) on pagepreceding dedication page.cited in Mayer, A. E., Islam and Human Rights, (1999) 2ndEd., p.25.
106See e.g. Mayer, E. A., ibid, p. 74. See also Amnesty International, Iran: Human Rights Violations Against Shi'i Religious Leaders and Their Followers (1997) MDE/1 3/018/1997.
107Seee.g. Monshipouri, M., (1998) note 97 above,p. 181-183.PresidentKhatami was re-electedfor a 2ndterm in office in June2001.
279
The State's resentment to the international human rights regime has declined greatly over the UN human Iran to the periodic reports submitting rights treaty organs and cowith years investigating human UN the position representatives of with rights in the country. operating While this has still been subject to Iran's policy of enforcing international human rights 108 it law, has been Islamic through a co-operative and moderate the of principles within hostile hard-line The Deputy Permanent Representative of than a and one. rather approach Iran to the UN, Mr. Ziaran, before the Third Committee of the 53rd Session of the General Assembly in November 1998, commenting on the 50`h anniversary of the UDHR, declared that "(t)he government of the Islamic Republic of Iran is fully committed to the promotion of human rights". This commitment, he pointed out "is not out of political expediency rather it Islam". He from "the teachings that the of supreme also avowed government of the stems Islamic Republic of Iran would extend its full cooperation to the human rights mechanisms" 109 UN. of the Iran is a State Party to both the ICCPR and ICESCR and to at least 20 other 10 human Only the Convention on the Rights of the international treaties relating to rights. Child was ratified after the declaration of the country as an Islamic Republics 1. Despite the international the the the Iran did existing order at outset against of revolution, not criticisms however withdraw its ratification to any of the earlier Conventions ratified. Rather, the State indicates intention fulfil in its times, international to earlier observed, as an recent policy human rights obligations within its application of Islamic law.
108See e. g. Core Document Forming Part of the Reports of States Parties submitted by Iran to the UN, UN Doc. HRI/CORE/I/Add. 93.
109See Statementby H.E. Mr. BozorgmehrZiaran at, PermanentMission of the Islamic Rep. of Iran to the UN (Online): html [ 12/12/2000]. btt, 2://www. un. int/iran/statements/3e a/3Qa53008.
10 Genocide Convention (1948); Convention on the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1950); Slavery Convention (1953); Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (1956);; International Convention on the Elimination of all Forms of Racial Discrimination (1965); International Convention on the Suppression and Punishment of the Crime of Apartheid (1973); International Convention Against Apartheid in Sports (1985); Convention on the Rights of the Child (1989); 1949 Geneva Convention I; 1949 Geneva Convention II; 1949 Geneva Convention III; 1949 Geneva Convention IV; ILO Convention (No. 29) Concerning Forced Labour (1930); ILO Convention (No. 98) Concerning Application of the Principles Collectively Bargain (1949); ILO Convention (No. 100) concerning Equal Remuneration for Organise Right to and the of Men and Women for Work of Equal Value (1951); ILO Convention (No. 105) Concerning the Abolition of Forced Labour (1957); ILO Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation (1958); ILO Convention (No. 122) Concerning Employment Policy (1964); ILO Convention (No. 135) Concerning Protections and Facilities to be Afforded to Workers' Representatives in the Undertaking (1971); UNESCO Convention Against Discrimination in Education (1960). See UN Human Rights Treaty Website at: http: //www. unhchr. ch/htnil/intlinst. htni htm [25/2/2001] and [25/2/2001] and ILO Conventions Website at: htt: //itolex. ilo. ch: 1567/ ublic/en lish/docs/convdis . Website http: Law Treaties //www. icrc. Humanitarian at: International org/ihl [25/2/2001].
The Islamic Republic of Iran entereda reservationupon ratification of the Child Convention reservingthe right not to it incompatible Convention Islamic law. the considers of with provision any apply
280
Constitutional Rights Chapter 3 of Iranian constitution provides for the "Rights of the People", which includes ' 12 Some social, and welfare economic, cultural political, rights. of the basic civil, 113 "citizens" "people Iran". In pursuance of Article to and of constitutional rights apply only 4 of the constitution, the constitutional rights are guaranteed either "in conformity
with
criteria"114, "not detrimental to the fundamental principles of Islami115 or as 116 by law". "provided" Rights may also not be exercised "in a way injurious "sanctioned" or 117 interest". detrimental Mayer has observed that these "Islamic to public to others or
Islamic
have in Islamic their Republic of the stripped rights rights of substance" of qualifications 118 Iran. Ideally, the subjection of rights to the principles of Islamic law should not constitute a denial for their or abuse. It could simply aim at ensuring compliance with Islamic threshold the morality and within social cohesion public enjoyment of the guaranteed rights. of norms This depends of course on the interpretative approach to Islamic law adopted by the regime in power. While subjection of rights to Islamic law can have adverse claw-back effects under be liberal Islamic Islamic the true hard-line regime, same may not under a regime. Mayer a thus concluded that "one must be careful to avoid creating the impression that somehow the Islamic qualifications on rights ... created the human rights violations that ensued in Iran, but be denied in that the name of underplay... rights could not restricted also or should one 119 The present shift in State policy of Iran on international human rights guarantees Islam". it is law Islamic impedes that the human that conclusion not per se rights in corroborates Muslim States but it is the regimes in power that may employ the law to restrict human rights for their own purposes.
Equality and Non-discrimination The Iranian constitution provides that all "citizens of the country, both men and women, law human, the the of and protection enjoy enjoy all political, economic, social, and equally
112Articles 19- 42 of Constitution of the Islamic Republic of Iran.
113e.g. Art. 19 (Non-discrimination); Art. 20 (Equality before the law); Article 29 (Welfare rights); Article 30 (Education); Article 31 (Housing); Article 34 (Recourse to the courts).
114e.g. Art. 20 (Equality before the law); Art. 21 (Women's rights); Art. 26 (Freedomof association);Article 28 (Work). '15e.g. Art. 24 (Freedomof the press);Art. 26 (Freedomof assembly). 116e.g. Art. 22 (Human dignity and rights); Article 25 (Secrecyof communication); Art. 32 (Arrest); Art. 33 (Residence). 117Art. 40. 118Mayer, E.A., (1999) supra, note 105 abovep.75. ibid, p.76.
281
120 in Islamic This with criteria". constitutional provision on conformity rights, cultural is restrictive to citizens and thus raises the question of whether or not the equality of equality been has is It in both the that there also observed assured. also are provisions non-citizens discriminate from international human rights that non-Muslims against codes civil penal and 121On the rights of minorities, the Iranian constitution provides that: perspectives. "All people of Iran, whatever the ethnic group or tribe to which they belong, enjoy 122 like do language, bestow the and not any privilege". equal rights; and color, race, The omission of religion in the proviso on non-privileges is related to the fact that the State is based on an Islamic ideology and thus certain positions would only be occupied by 123 On the rights of non-Muslims Article 14 of the Iranian constitution provides Muslims. that: "In accordance with the sacred verse "God does not forbid you to deal kindly and justly with those who have not fought against you because of your religion and who have not expelled you from your homes" [60: 8], the government of the Islamic Republic of Iran and all Muslims are duty-bound to treat non-Muslims in conformity with ethical norms and the principles of Islamic justice and equity, and to respect their human rights. This principle applies to all who refrain from engaging in conspiracy or activity against Islam and the Islamic Republic of Iran".
The proviso exempting those who engage in "conspiracy or activity against Islam and from Iran" Republic Islamic of enjoying the rights guaranteed to non-Muslims under the Article
14 obviously aims at protecting the Islamic ideology of the State. It is however
is laws State ideologies. the to While as case with abuse all aimed at protecting susceptible Article 23 also provides that the "investigation of individuals' beliefs is forbidden, and no for holding be taken to task belief', Article 13 or simply molested a certain may one Jewish Christian Zoroastrian, Iranians "only the and only as religious minorities recognises law, limits free the to perform their religious rites and ceremonies and the of are within who, in their to own canon matters of personal affairs and religious education". to act according This follows the traditional conception of recognising the religious practices of "the people law. in Islamic However, Iran's book" ICCPR the under second periodic report submitted of
120Art. 20. 121See e.g. UN Doc. E/CN. 4/1999/32, Annex IV, See also Human Rights Watch, Iran: Religious and Ethnic Minorities, Discrimination in Law and Practice (1997), pp. 8-10.
122Art. 19 Constitution of the Islamic Republic of Iran. 123Seee.g. Art. 115 of the Constitution of the Islamic Republic of Iran which provides that qualifications for Presidency belief in fundamental "convinced the include principles of the Islamic Republic of Iran and the official madhhab shall (School of Thought) of the country". This can obviously be fulfilled only by a Shi'ah (TwelverJa jari) Muslim.
282
in 1992 to the HRC it was indicated that the term "non-Muslims"
in Article
14 of the
124 in do believe those not who monotheistic religions. constitution also referred to One religious minority in Iran to whom the proviso on conspiracy has been applied are the Bahais. Rather than religious minorities per se, the Islamic Republic of Iran considers the Bahais as Islamic heretics. The Bahais hold their founder, Bahaullah, as a prophet but do not however claim to be Muslims. Apart from being declared as heretics the Bahais are also by State for Israel, bringing the them within the of espionage accused and often suspected Constitution "engaging in 14 Iranian Article the as of conspiracy or activity proviso of Islamic Republic Iran" from Islam thus the them the rights of of and exempting and against The factor in the Bahais the conspiracy under constitution. guaranteed puts a non-Muslims 125 Islamic Republic Iran. This has attracted a lot of attention difficult position within the of in international human Iran from the Baha'i International rights circles and of criticism and '26 Community.
Women's Rights
A section of the Preamble in the Iranian Constitution is titled "Women and the Constitution" and it provides that: "Through the creation of Islamic social infrastructures, all the elements of humanity that served the multifaceted foreign exploitation shall regain their true identity and human rights. As a part of this process, it is only natural that women should benefit from a particularly large augmentation of their rights, because of the greater " (emphasis they the that suffered under old regime. added). oppression
Article 21 of the Constitution also contains a substantive provision on women's right
that: providing "The government must ensure the rights of women in all respect, in conformity with Islamic criteria, and accomplish the following goals: 1. create a favourable environment for the growth of woman's personality and the her both the material and intellectual; of rights, restoration
124SeeUN Doc. CCPR/C/28/Add.15 of 22/5/1992,Par. 5. 125See Human Rights Watch, Iran: Religious and Ethnic Minorities, Discrimination in Law And Practice (1997) p. 11; and Monshipouri, M, (1998) supra, note 97 above, p. 192-3. 126See UN Doc. E/CN. 4/1999/32, Par. 40-45. See also HRW, ibid, pp. 10-15. See also Mayer, E. A., (1999) supra, note 105 Community, Baha'i International See Iran's Secret 141-144. Blueprint for the Destruction of a Religious also pp. above, Community (1999).
283
2.
the protection of mothers, particularly during pregnancy and child-rearing, and the protection of children without guardians;
3. establishingcompetentcourts to protect and preservethe family; 4.
the provision of special insurance for widows, aged women, and women without support;
5.
the awarding of guardianship of children to worthy mothers, in order to protect the interests of the children, in the absence of a legal guardian.
While the rights of women must be ensured in conformity
with Islamic criteria, this
them. in the to to be ideally goals and stated not restrict accomplish manner a positive should Despite the above constitutional provisions however, the status of women in Iran has been both Iranian Penal by that the grounds rights on and of women's advocates criticised greatly Civil codes contain, on the basis of Islamic law, provisions that discriminate against women in employment, education and family rights, which prevent the accomplishment of the above 127 for in the women. constitution out set goals In line with the shift in the human rights policy of Iran, there have however been official 128 by Iran The improved declaring on women's rights generally. positions policy statements in her blend the to woman's motherhood role with role Iranian policy of wanting cautiously follows: by Khatami President State the as was summarised social affairs of "If you deprive a woman of the opportunity to participate in social activities, she is denied a balanced growth. Likewise, if you deprive a man of social activities, his development will also be stunted. On the other hand, we all agree that one of the foundation is family is the the the way world modem of of problems greatest desolation What do, the the of children. we emotional can ensuing and undermined, then, both to provide our women with to play their part in social affairs so that they do. (sic) And full at the same time, safeguard the growth as men natural can enjoy foundations of the family? Whether we like it or not, women play the pivotal role in the life of the family, and her absence may very well lead to the total collapse of the family. To prevent this, the Islamic Republic of Iran is trying to find a way of in in to this women's participation ensure society while, at order paradox resolving 129 family... the same time, preventing the breakdown of the
In October 1997, the country's representative, Ms. F. Vadiati, stated, inter alia, before
items discussions during "Advancement UN the Committee the Third of agenda of of the 127See e.g. Afshar, H., "Women, State and Ideology in Iran", in Women Living Under Muslim Laws (ed), Dossier 3 (1988) Law Defined by Status "Personal H., Hoodfar, the Islamic Republic of Iran: An Appraisal", in M., Kar, as and pp42-48; Women Living Under Muslim Laws, (ed. ) Shifting Boundaries in Marriage and Divorce in Muslim Communities: Special Dossier (1996) pp. 7-36; Mehrdad, A., "Women in Iranian Civil Law: 1905-1995", in Women Living Under Muslim Laws, (ed. ) Dossier 14/15 (1991) pp. 86-95. 128See e.g. Mayer, E. A., (1999) supra, note 105 above, p. 117; and Monshipouri, M., (1998) supra note 97 above, p. 190192.
284
Women" and "Implementation of the Outcome of the Forth World Conference on Women", that: "In recent years, Iran has greatly embarked on promoting the status of women in different areas such as education, economy and decision-making". In the ... aftermath of the recent Presidential elections in Iran, (that was in 1997) we expect to see a higher degree of attention and emphasis on the advancement of women, ... the President has recently designated "a high advisor for women affairs whose chief duty includes to act as the main government coordinator (sic) on all activities pertaining to contribution of women in various dimensions of social life. The president has also included for the first time, a woman in the Cabinet as the Vice-President and the Head of Environment Organization. "'"
Ms. Vadiati then enumerated the country's approach and policy towards ensuring follows: as rights women's 1.
Raising public awareness towards women's rights by organizing seminars and workshops with contribution and cooperation of NGOs;
2.
Developing national infrastructures and machineries for the advancement of women, particularly creation of special commissions or offices in government agencies, and special commissions for the youth, family and women in the Parliament.
3.
Incorporating of gender perspective into laws and regulations and government programs and policies including in (sic) the draft of National Plan of Action for Women. ' 31
The above policies express a wider interpretation of the provision on women's rights in Article contained
21 of the Iranian constitution.
Ms. Vadiati
also spoke of Iran's
discriminatory in Afghanistan the against of practices women which, the condemnation Iranian representative observed, "are sadly carried out in the name of Islam, but in fact have 132 face divine The present Iranian supreme leader, this of religion". tarnished the true Ayatollah
Khamenei, was also quoted to have criticised the hard-line interpretation of
Islamic law by the Taliban of Afghanistan saying, "(t)he world does not accept what the 133 in Islam". This reference by Iran to conservative customs doing the name of Taliban are
129PresidentKhatami's speechto headsof diplomatic missions to Tehran, on February 10,1998, Seethe Presidencyof Islamic Republic of Iran Website at: http://web.president.gov.ir/outlooks/Women.htm [25/2/2001]. 130SeeStatementby Ms. F. Vadiati, before the 3rd Committee on October 23,1997, PermanentMission of the Islamic Republic of Iran Website at: http:/hvww.un.int/iran/statements/3a/3a52002. html [25/2/2001] 13' ibid.
132 ibid.
133SeeSciolino, E., "The Many Facesof Islamic Law", TheNew York Times,Octoberl3,1996 (Editorial) 2. Also Ayatollah Jannati, Secretaryof the Iranian Council of Guardians,was also quoted to have publicly denouncedthe Taliban policy on be "What than in 1996 could worse committing violence, narrow-mindednessand limiting women's rights saying: women [thereby] defaming Islam?" SeeMayer, E.A., (1999) supra note 105 above,p. 117.
285
Muslim by a neighbouring and traditions adopted
State in the name of Islam, tends to
demonstrate its own move towards a moderate approach to the interpretation of the Shari `ah. has isolated Iran the important that to statements. consistently made It is above are not note in improve indicate the in to that times upon women's rights a will recent policy statements country. In his address before the 53rd Session of the UN General Assembly in September 1998, for the Iran the Khatami of status of women. a reassessment need President emphasised of He declared as follows: "Efforts at the global level geared to the promotion and strengthening of respect for the traditional their of and reassessment a critical require rights women and inappropriate views about women. The traditional outlook, based on the erroneous does injustice to men, women and women, over of men superiority of notion humanity as a whole; equally nefarious is the view that disregards the differences between men and women. We should recognize that both men and women are for intellectual, humanity the that potential equally possess valuable components of development, that comprehensive and sustainable and and political social, cultural development is only possible through the active participation of both men and life. s134 in social women
It is apparent that the words of the above statement by the Iranian president on the status President frank. The the the and platform at which of status and chosen well were of women lend to the the both that delivered weight conclusion and significant are the statement was for State Iranian the promotion of policy of a genuine a reiteration represents statement Committee UN, Ms. Vadiati Third the 1998 Again the the of of meeting at women's rights. during the continued discussions on the "Advancement of Women" and indicated Iran, of had Conference Women" Iran World Fourth Outcome that the the on of -Implementation of its for implementation in the the further national plans of advancement practical steps taken indicated the appointment of The in indicated the representative year. previous of women into legal licences judges, the granting of practice, of more women admission more women in female increase the admission of students to more women as media practitioners and an into institutions of higher learning. Legislation recognising women's pension and women's 135 had been also passed. of children to guardianship right The Special Representative of UN Commission on Human Rights to Iran confirmed the in but human Iran, 1998 December in his the on rights situation went on report above efforts 134SeeStatementof H.E. Mohammad Khatami, Presidentof the Islamic Republic of Iran before the 53d Sessionof the UN 21,1998, Permanent Mission September York, New of the Islamic Republic of Iran Website at: Assembly, General html [25/2/2001]. http://www un int/iran/statements/aa/ga53001.
286
to indicate that "there needs to be a clearer focus on the legal and practical discrimination" 136 The deputy speaker of the Iranian Parliament was reported to have also faced by women. be done, laws, to the there to that much especially was still amendment of acknowledged 137 in by full With the the women of rights country. enjoyment respect to the ensure implementation
laws generally, of and amendment
President Khatami
established a
"Committee for Inspection and Supervision on the Implementation of the Constitution" in 1997 empowered to, inter alia, "regulate policy for the implementation of the Constitution, be individual to that should given articles contain which and social with particular preference laws Nation, to to the and supplementary proposals submit amendatory as and and rights of implementation Constitution; better for the of and comprehensive and to regulate regulations in familiarize Nation to the programmes; order and research of their educational suggest and 138 for discharging In a these rights". legal rights, and to adopt appropriate approaches in its April 1999 51" UN Commission Human the Rights at meeting on adopted resolution by "positive Government interest, Islamic Republic the the the statements of of with noted Iran about the need to review laws and attitudes which discriminate against women, and the 139 in life Iran". increase the the of women public of presence of gradual It becomes evident from the Islamic Republic of Iran's policy towards the promotion of is its inherent Islamic that there socio-legal setting, not necessarily within an rights women's law. Islamic The rights under status of women under the application of women's suppression in depends humanitarian law the Islamic country on political and any particular will of the of by it in its interpretation Shar `iah. the The the approach adopted of and authority ruling Shari'ah,
been in has already analysed previous chapters of this thesis, is able to as
full the enhancement of women's rights within the scope of the rules of accommodate Islamic morality, which applies both to the male and female.
Islamic Criminal Justice Iran's Penal Code is based strictly
on the Shi `ah Islamic criminal jurisprudence. 140 implements Islamic the traditional the Accordingly, country criminal punishments, which
'35 See Statement of Ms. F. Vadiati before the 3`d Committee on October 19,1998, Permanent Mission of the Islamic Republic of Iran Website at: http: //www. un. int/iran/statements/3ga/3ga53004. htini [25/2/2001].
'36UN Doc. E/CN.4/1999/32, Par. 86. 137Seeibid., Par.30.
138See UN Doc. E/CN. 4/1999/32, Annex V, par. 12. 139Commission on Human Rights Resolution 1999/13. 140See Chapter 4, pp. 72-80 above.
287
14' incompatible Article 7 ICCPR. the For HRC the with provisions of of the considers as instance the Committee has expressed concern about the punishments of stoning, amputation his by State. In imposed 56`h Session to the the report of the UN General and crucifixion Assembly on the situation of human rights in the Islamic Republic of Iran for the year 2000, the UN Secretary General noted that the punishment of stoning was declining in Iran but that 142 high The however still at a rate. report were and executions quoted opinions amputations from Iranian Ministry of Justice spokespersons to the effect that "some of the hangings from laws in Iranian necessary a religious point of view and the system were not envisaged could replace them with other sentences"143and also that the punishment of stoning may not 144 judiciary interest head believes it be the the that could be in the country's of and avoided. The Iranian Constitution prohibits
all forms of torture "for
the purpose of extracting
information" that and provides violation of the prohibition of torture acquiring or confession 145 in law. accordance with the will be punishable
General Representations on Human Rights President Khatami has recently expressed the importance of freedom in a manner that interpretation Shari `ah individual for the the of as well as guarantee a moderate of calls in Tehran University 1998, In in Iran. to to commemorate the students at an address rights first anniversary of his election, the president declared his belief in freedom as follows: "Let me declare my belief clearly. The destiny of the religion's social prestige today and tomorrow will depend on our interpretation of the religion in a manner which would not contradict freedom, whenever in history a religion has faced freedom, it has been the religion which has sustained damage when we speak of freedom we ... mean the freedom of the opposition. It is no freedom if only the people who agree with those in power and with their ways and means are free. "146
Also in his speech at the 53rd Session of the UN General Assembly the Iranian leader indicated that the history of humankind is that of liberty and expressed his belief in the fact that "humanity, despite all calamities and hardship, is heading towards emancipation and liberty".
He called for co-operation of the international community "against genocide,
humiliation the and aggression
of mankind in various corners of the world",
and finally
141See e.g. HRC Concluding Observations on Iran (1993) UN Doc. CCPR/C/79/Add. 25., Par. 11. See also Human Rights Watch, Iran, Religious and Ethnic Minorities, Discrimination in Law and Practice (1997), Vol. 9, No. 7(E), pp. 8-10. 142SeeUN Doc. A/55/363 of 8 September, 2000. Par. 49-58. 13 ibid. Par. 49. 144ibid. Par. 57.
145Art. 38. Constitution of the Islamic Republic of Iran . http: //www. 146See President Khatami's Homepage Online at:
persia. orv-fkhatamilindcx. htmi [13/12/2000].
288
designate Republic Iran UN Islamic in that the the the the should of year of name proposed 147 Civilizations". In response of which the UN General 2001 as the "Year of Dialogue among Assembly adopted a Resolution proclaiming the year 2001 as the United Nations Year of 148 The present trend in Iranian State policy therefore Civilizations". Dialogue among indicates a big transition from the hostile and non-compromising phase of the first decade of the Iranian revolution. The present phase is more of reconstruction and moderation, which of individuals
has shown accommodation
for the freedom
demonstrates the possibility
between law Islamic common grounds and establishing of
and rights
and thereby
international human rights principles. The conservative and hard-line sector within both the Iranian leadership and society however remain cynical of Khatami's moderate tendencies.
REPUBLIC
OF THE SUDAN
While Islamic culture in the Sudan dates back to as early as the 9th century, the formal dates back least full legal `ah Shari Mahdist State to the the the system at as of application With British Sudan in between 1884-1898. 1898 in Sudan the the colonisation of established legal system was pluralised by the introduction of the principles of English Common Law legal law The the later the as of and custom part system. of native pluralised recognition and legal system consisting of English common law, Islamic personal law and native law and independence into independence 1956-83.149 the and post period of custom continued In 1983 President Numeiri introduced an Islamisation policy which principally involved in implementation law Sudan. A series of legislation full Islamic the of the re-introduction of that came to be known as the September (1983) Laws were enacted to bring the whole legal 15° law. Islamic The harsh into the political with manipulation conformity of and system implementation of the September (1983) laws met with both internal and external criticism human The be the to rights practice. question country's may raised whether the with regards fault is with Islamic law per se or with the manner it was enforced through the September (1983) laws in Sudan. An-Na'im has submitted that while "some of the defects of what came to be known as the September (1983) laws can be attributed to the haste and ambivalence 147SeePresidentKhatami's Speechat UN GeneralAssembly on Sept.21,1998, PermanentMission of the Islamic Republic int/iran/statements/ga/ga53001. htnil http: //www. [25/2/2001]. Website Iran un. at: of 149UN GA Resolution AIRES/53/22of 16 November 1998.
149See Khalil, M. I., "The Legal System of Sudan" (1971) 20 International and Comparative Law Quarterly 626; Thompson, C. F., "A Case Study from the Republic of the Sudan" (1966) Wisconsin Law Review 1149-51. See also J., and Swamuelson, P.A., "Toward Pluralism in Sudan: A Traditionalist Approach" (1996) 37 Harvard L. Lauro, generally, International Law Journal, No. 1, pp. 65-138.
289
imposed by former President Ja`far Numeyry, Islamization the was of policy with which law basic the the the defects the modern application of criminal of of problems reflect other 151 He pointed out that the full application of Islamic criminal law was re11 Shari`a... introduced in the Sudan when "the country was suffering from severe economic difficulties" (lived) "vast the under conditions of extreme poverty and the population majority of and 152 The forced to theft that and other property crimes. many people need" - circumstances in intermittent between the the civil war country situation was also complicated with Northern and Southern Sudan since 1983.153 It is important to reiterate here, as earlier '54 jurists agree that the existence of certain adverse Islamic in that thesis, this observed human and social conditions that contribute to the escalation of crimes may demand the hudüd punishments. On the less than the other severe punishments of enforcement El-Awa has in Muslim Islamic societies, contemporary pointed penal system application of framework factors that take to of necessary social and would cognisance the always need out 155 is judicial in There the the its precedent practice of early application. nonsensical prevent Islamic State of restricted application of hudüd punishments in periods of severe economic '56 difficulties. social and Sudan is a State party to both the ICCPR and the ICESCR and to at least twenty other ' 57 human It also signed the Torture Convention in international instruments relating to rights.
Gordon, C. N., "Islamic Legal Revolution: The Case of Sudan" (1985) 19 International Lawyer 793; An-Na'im, A. A., Towards an Islamic Reformation (1990), pp. 125-133. 151An-Na'im, A. A (1990) ibid., p. 127. ist ibid., 131. "'See
I" The SudanRepresentativeduring the considerationof the 2ndICCPR Periodic Report of Sudanby the HRC in 1998 human rights violations related to the armed conflict in southernSudan,which had "most the of allegations that: of argued been going on sincethe early 1950s." SeeSummaryRecord of the 1628`hMeeting of the HRC on Sudan,UN Doc. CCPR/C/SR.1628of 2 February 1998,Par.5. 15'SeeChapter4, pp. 77-78 above. iss El-Awa, M. S., Punishmentunder Islamic Law (1982) p. 136. Seealso Mawdudi, A. A., Islamic Law and Constitution (1967) pp.53-59. 156Seee.g. Abü Zahrah, M., Usül al-Fiqh (Arabic) (1958) p.222-228; Ibn Qayyim, 19äm al-Muwagqqi'In (Arabic) (1996) Vol. 1. p. 185. Seealso Kamali, M. H., Principles of Islamic Jurisprudence (1991), pp.247 and 270.
157Slavery Convention (1926); Supplementary Convention on the Abolition of Slavery, The Slave Trade and Institutions Slavery (1956); Convention Relating to the Status of Refugees (1951); Protocol Relating to the Similar to Practices and Status of Refugees (1967); Convention on the Elimination of all Forms of Racial Discrimination (1965); African Charter on Human and Peoples Rights (1981); Convention on the Rights of the Child (1989); Convention on the Suppression and Punishment of the Crime of Apartheid (1973); The 1949 Geneva Convention I; The 1949 Geneva Convention II; The 1949 Geneva Convention III; The 1949 Geneva Convention IV; ILO Convention (No. 29) Concerning Forced Labour (1930); ILO Convention (No. 98) Concerning the Application of the Principles of the Right to Organize and Bargain Collectively (1949); ILO Convention (No. 100) Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (1951); ILO Convention (No. 105) Concerning the Abolition of Forced Labour (1957); ILO Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation (1958); ILO Convention (No. 122) Concerning Employment Policy (1964); OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969); International Convention Against Apartheid in Sports (1985). See UN Human rights Treaty Website at: http: //www. unhcht. chfhti-nl/intlinst. htm [25/2/2001] and ILO Conventions Website ilo. ch: 1567/public/english/docs/convdisp. htm [25/2/2001] and International Humanitarian Law Treaties //ilolex. http: at: Website at: http: //www. icrc. org/ihl [25/2/2001].
290
its fulfilling it. towards We is but to examine policy and practice 1986 shall now ratify yet its international human rights obligations within its dispensation of Islamic law.
Constitutional
Rights
Sudan adopted a new constitution in 1998 containing a section on "Freedoms, Sanctities, 158 The rights guaranteed are: Freedom and Sanctity of Life'59; Right to Rights and Duties". '62; 6'; 160; Creed Movement Freedom Freedom Nationality' Sanctity of and right of Equality of 164; Freedom Association Expression Thought Freedom Worship'63; and of and of and 167 165; Sanctity Earning Property Sanctity of Cultural Communities'66; ; of and Organisation 168; Immunity against Detention'69; Right and Privacy Inviolability of Communication and 170; in Sanctity from Defence'"; Death Innocence Right in Litigation save and Sanctity of 172 Article 34 also provides for the right of access by every aggrieved person to the justice. in freedoms, for the the the sanctities and rights of guaranteed Constitutional court protection constitution,
including the right to compensation for damages sustained as a result of
the constitutional rights. of violation While some of the rights under the constitution are apparently absolute173,most are only
includes law because Islamic by law". This be "as certainly regulated may enforceable legislation follows: for Constitution the 65 the sources of as country's Article provides of "Islamic law174 and the consensus of the nation, by referendum, Constitution and legislation in legislation; be the contravention with and no sources of custom shall these fundamentals shall be made; however, the legislation shall be guided by the by learned thinkers, then the the of scholars and and opinion opinion, public nation's decision of those in charge of public affairs. "
158SeePart II (Articles 20 - 35) Constitution of the Republic of Sudan(1998). Republic of SudanGazetteSpecial SupplementNo: 1. 159Art. 20. ibid. 160Art. 21. ibid. 161Art. 22. ibid. 162Art. 23. ibid. 163Art. 24. ibid. 164Art. 25. ibid. 165Art. 26. ibid. 166Art. 27. ibid. 167Art. 28. ibid. 168Art. 29. ibid. 169Art. 30. ibid. 170Art. 31. ibid. 171Art. 32. ibid. 172Art. 33. ibid. 173e.g. Freedom from slavery, forced labour, humiliation or torture (Art. 20) and Right to Equality (Art. 21) 174The Arabic term used is ("al-SharIah al-IsldmIyyah').
291
Thus where Islamic law applies, at least to Muslims, some of the constitutional rights interpreted by law. be Islamic From international law perspective, this as regulated an would amounts to creating claw-back avenues on some of the apparent constitutional rights. This in face hard-line interpretations be the so of practically of Islamic law. However, the can learned takes the that which of article, opinion of scholars and thinkers into proviso in does dialogue, legislation if encourage which positively consideration dynamic and moderate views of Islamic accommodate
utilised, should
scholars and thinkers in the
interpretation of the law in a manner that ensures the positive realisation of the rights guaranteed.
The Islamic concept of public order (hisbah) is also constitutionalised in Article 16 of the constitution empowering the State to promote morals and unity of the society as follows: "The State shall, endeavour by law and directive policies to purge society from corruption, crime, delinquency, liquor among muslims, and to promote the society as a whole towards good norms, noble customs and virtuous morals, and towards such as may encourage the individual to actively and effectively participate in the life of society and guide the same towards rallying those around him for good collective gain, solidarity and fraternity by the firm divine cord in a way that preserves the unity of the country, stability of governance and progress towards civilized renaissance and higher ideals. "
The Sudanese constitution thus attempts to blend the guarantee of human rights with the 175 Islamic law. State obligation of protecting public morals under How the State succeeds in between balance the two without unnecessarily encroaching upon individual a achieving depend factors; (i) influence two the that learned opinion of on constitutional will rights in Article have 65 law thinkers, as stated and on making and enforcement, and (ii) scholars the approach of the constitutional court in the interpretation of the scope of the constitutional in individuals relation to the morality role of the State under the constitution. rights of
Equality and Non-discrimination Article 21 of the Sudanese constitution provides that: "All people are equal before the courts of law. Sudanese are equal in rights and duties functions to of public life; and there shall be no discrimination only by regards as reason of race, sex or religious creed. They are equal in eligibility for public posts being discriminated not on the basis of wealth. " and offices
175SeeChapter4, pp. 65-67 above.
292
Despite the constitutional provision above, the ESCR Committee confronted Sudan, during the consideration of its initial report on the ICESCR, with allegations and questions 176 Sudan in its denied discrimination. the reply allegations of gender and religious on freedom belief, discrimination that thought of contending and expression are religious in Sudan "all freely in Sudan, the that to practice religious the citizens are able guaranteed 177 Responding the the throughout to a similar of country". whole rites and ceremonies during Committee Rights Sudan's by Human the the consideration of second question raised Periodic Report on the ICCPR in 1997 that the application of Islamic law in Sudan was discriminatory
to non-Muslims,
the Sudanese representative contended that Islamic law
Muslims, "the Muslims, the to since majority of population were and use of only applied Shariah as a source of law for Muslims and customary law as a source for non-Muslims was that) impose (and to the will of the minority would best any attempt the option available 178 Committee The ESCR further lead Islamic to the also raised questions conflict on simply .,, law rules of inheritance, marriage, and divorce applicable in the Sudan as being discriminatory against women, which are examined below.
Women's Rights The Sudanese constitution has a general provision on women in conjunction with the institution
is family. This also perhaps to portray the important role of women in of
family law Islamic institution Article 15 the of within and culture. provides that: protecting "The State shall care for the institution of the family, facilitate marriage and adopt policies to purvey progeny, child upbringing, pregnant women and mothers. The State shall emancipate women from injustice in all aspects and pursuits of life and (the Arabic the version says "her role") thereof in family and public role encourage life. "
Although this provision is quite general and non-specific on the rights of women, the State "shall from injustice in the that emancipate women all aspects and second sentence in (her) family is life" life thereof role encourage and and public so wide and pursuits of be it to that a used as constitutional provision can guarantee the general rights of absolute 21 Article discrimination. The in Sudan. also prohibits sexual extent of the rights that women however depend these liberality provisions will the under enjoy greatly may on or women X76See the Committee's List of issues on Sudan, UN Doc. E/C. 12/Q/SUD/1 of 13 December 1999, Par. 11-18. 177See Reply to List of Issues by Sudan, UN Doc. HR/CESCR/NONE/2000/10 of 24/06/2000, Par. 11-15
178SeeHRC SummaryRecord of 1629`hMeeting: Sudan,UN Doc. CCPR/C/SR.1629 of 31/10/97 Par. 26.
293
interpreting the organs of that provision, especially when considered against the of otherwise morality
State the under the constitution. of powers
Women's
rights advocates have
Sudan's Islamisation in the the effect of policy on criticised women's rights generally country. Sudan regulates public morality through the provision of public morality offences in the Penal Code179and also through the Public Order Act of 1996. The provisions prescribe inter alia, the punishment of whipping for anyone who conducts him/herself in an indecent The laws in to contrary public morality. morality a manner are enforceable mainly or manner by the "Morality
and General Discipline
Police" or the "Popular Police" (Muhtasibün).
Women are reported to be the most vulnerable groups to the excesses and abuses of the ' 80 these of provisions. enforcement zealous In its concluding observations on Sudan's second periodic ICCPR report, the HRC had "official the at concern expressed
enforcement of strict dress requirements for women in
inhuman the guise of order under public and morality, and at places, punishment public imposed for breaches of such requirements. "181 We identified earlier in Chapter 4 of this doctrine hisbah in Islamic law the be that taken of under enforcing adequate care must study between balance upholding societal values and ensuring the rights of to ensure a proper individuals.
The scope of hisbah
should therefore be specifically
defined
and its
implementation properly monitored by the State. Its interpretation and enforcement should both discretion individuals judges left be to to the act as of prosecutors and enforcing not their own interpretations of whatever they consider as violating public morality. In its second periodic report on the ICCPR submitted to the HRC in March 1997, Sudan in its declared "de the jure enhancing efforts women's rights and existence of a enumerated 182 in On facto de discrimination the the in of sexes" equality country. question of gender and divorce inheritance, Islamic Sudan had responded rules regarding marriage, and of respect that "Islamic law and the Inheritances Act apply to all Muslims in accordance with their religious conviction,
as guaranteed by the Universal Declaration
of Human Rights in
(and Islamic law is their imposed that) of matters creed and religion with not on connection in s183 had It in its matters of personal status. also contended report on the non-Muslims ICCPR that "the claim that females are entitled to half the share of males in inheritance is not
19 SeePart 15 of the SudanPenalCode 1991.
180See Lawyers Committee on Human Rights Beset by Contradictions, (1996), pp-80-82 and Report of the Special , Rapporteur, Mr. Gaspar Biro on Situation of Human rights in Sudan, UN Doc. E/CN. 4/1998/66 (Part VII).
'$' SeeUN Doc. CCPR/C/79/Add.85 of 19/11/97,Par. 22. 182SeeSecondPeriodic Report of StatesParties:Sudan,UN Doc. CCPR/C/75/Add.2 of 13/03/97,Par.35. 183SeeUN Doc. HR/CESCR/NONE/2000/10,Par 17 (a).
294
instances, female be in a would entitled to more than the share of a many accurate, since 185 from it by law. travelling abroad any male. s184Women, argued, are also not prohibited On the question of female representation in government and politics, Sudan has reported to the ESCR Committee that "Sudanese women are more widely represented in the public in in their than which are similar circumstances" and that a countries counterparts service 186 in The country had also established an office for is "quota parliament". women allocated for women development and claimed to be "one of three countries, worldwide, which have 187 international harmful to traditional eradicate efforts practices". responded positively to the In 1995 the country drew a 10-year plan to achieve, inter alia: (a) Removal of obstacles to women's development projects;
development
and their integration
(b) Granting women all legal and political rights; (c) Strengthening capabilities of women to participate in policy-making, planning, implementing and follow-up;
into
project
(d) Promotion of the economic capabilities of women by increasing their access to inputs; production (e) Encouragement of women to start small projects in the industrial fields; (f) Promotion of infant health care services and family planning and reducing intensive through mortality rates, vaccination programmes; mother/child (g) Training of women in general health, environment and hygiene, as well as raising health awareness in general;
(h) Education to decreaseilliteracy and eventually eradicateit altogether; (i) Eradication of all harmful traditional practices, and in this connection a seminar has already been held in Khartoum (1995) to discuss female circumcision. "'
In response to the demand by the HRC that Sudan should promulgate a law prohibiting female genital mutilation, the Sudanese representative, Mr. El-Mufti,
stated that the practice
in Sudan but it difficult halt due to traditional to offence was such an practices already was the reluctance of the victims to file complaints. The government has thus embarked on social to The to the persuade programmes people abandon practice. educational second and El-Radi, Mr. "unfortunately that the added practice was an entrenched representative, 184SeeUN Doc. CCPR/C/75/Add.2 of 13/03/97,Par. 55.
115See UN Doc. HR/CESCR/NONE/2000/10, Par 17 (e); See also UN Doc. CCPR/C/SR. 1629 of 31/10/97 Par. 20. 186See UN Doc. HR/CESCR/NONE/2000/10 ibid., Par. 17(f). '$7 See UN Doc. CCPR/C/75/Add. 2 of 13/03/97, Par. 51. 188ibid., Par. 52.
295
ignorant isolated illiterate" in people are areas where and which makes particularly custom, the enforcement of the law difficult. He stated that "trained midwives... knew that they were 189 in involvement " for liable to prosecution such practices. It is instructive to observe here that there is a disputed traditional belief in Muslim female is Sunnah type there that of clitoridectomy a societies
in Islam. This belief is quite
in instance December 1997 High Administrative For the contentious.
Court of Egypt
lower had ban female in decision that the nullified of a court a of circumcision overturned Egypt. Earlier in 1995 the State jurisconsult (mufti) of Egypt and later head of the famous Azhar University of Cairo, Sheikh Muhammad Tantäwi, had stated that the practice had no legal basis in Islamic law, which led to the banning of the practice by the State. Some other Egyptian clerics however argued against the opinion of the mufti, claiming that there was a Tradition of the Prophet that allowed female circumcision. It was on that argument that a lower court granted the prayer of one of the clerics who had contested that the ban of the irreligious, was practice subsequently overturned.
a decision which 190
the highest Egyptian
administrative
court
In its concluding observations on Sudan's second periodic ICCPR report, the HRC demanded Sudan to repeal "all legal provisions hindering women's free choice of spouse, as between differentiating men's and women's rights to marry and within rules well as other As law Islamic in Sudan191. is the a general rule under consent of couple a marriage" for But jurisprudence Mälikl the in to validity of marriages. according condition necessary Islamic law, the consent of a virgin girl is subject to her guardian's overriding power of is considered as "a safety measure in the interest of the girl herself' and This (ijbär). restraint 192 for Where the the guardian uses this power of restraint against girl. right thus a protective be interest the girl, recourse can made to the courts to override such restraint. The of the Committee however noted that such restraint is incompatible with Articles 3,16,23 and 26 193 Sudanese The Sudan ICCPR. that ICCPR the the representatives submitted respected of They highest it that do the they priority. admitted mistakes could occur, and where and gave from to the tries the roots. The government thus considered address problem the government
189SeeUN Doc. CCPR/C/SR.1629of 31/10/97,Par. 19 and 34. 190SeeMiddle EastTimes, Egypt Edition, 4`hJanuary 1998.Seealso Egypt's reply to list of Issueson its ICESCR Report, UN Doc., HR/CESCR/NONE/2000/6of 28/03/2000,Par. 34. 19' See Concluding Observations of the HRC: Sudan, UN Doc. CCPR/C/79/Add. 85 of 19 November 1997, Par. 11. 192See Doi, A. R. I., Shari 'ah: The Islamic Law (1984) p. 123.
193SeeUN Doc. CCPR/C/79/Add.85, Par. 11.
296
in had to the top taken effort ensure gender or minority priority equality and as education 194 by to towards assess education all. ensuring steps necessary
Islamic Criminal Justice Sudan adopted a new penal code in March 1991 based upon Islamic law. The code is Sudan, in Muslim, including the the of which predominantly part northern only applies in All does It Khartoum. to the the traditional Islamic non-Muslims south. not apply capital 195 The application of the hudüd the law criminal punishments are applicable under code. immediately by HRC its Sudan by the the criticised was at consideration of punishment initial ICCPR report in 1991. The Sudan Representative rebutted the HRC's criticism of the hudüd punishment and argued that countries must be free to choose their laws based on their 196 however He ICCPR traditions that the also and customs. stated conversely convictions, formed an integral part of Sudan's domestic laws and could be invoked before all tribunals in be What to the seemed saying was that although it was bound by representative the country. the ICCPR as a State Party to it, his country's obligation under it, as a Muslim State, were implementable only within the parameters of the convictions, traditions and customs of 197 Bearing in mind however that Sudan has some percentage of citizens who do not Sudan. this Islamic the the customs, raises questions and about conviction general application share Muslim States in law Islamic comprising also of non-Muslim citizens. The status modern of Islamisation in Sudan the has been treatment citizens under non-Muslim policy of under and 198 international human by Hamidullah has however rights monitors. criticism serious ideal Conduct State, in his Muslim the status that non-Muslims should enjoy as of elaborated 199 State. Muslim a of citizens Christian leaders and other non-Muslim
Sudanese had protested the application of
Islamic law to non-Muslim Sudanese citizens under the September Laws of 1983.200 The in issue 1991 by Code to this Penal attempted address enacted exempting the application new in Islamic the its offences and punishments on non-Muslim southern part of provisions of Sudan, except the legislative authority of the region decides otherwise or the accused person
194SeeUN Doc. CCPR/C/SR.1629,Par. 61. 195SeeChapter4, pp.72-80 above. '96SeeUN Doc. A/46/40 SupplementNo.40 at 126,also LCHR, Beset by Contradictions, (1996) p.63. 197It is important to note that Sudandid not enter any reservationsat its adoption of the ICCPR. 198Seee.g. Human Rights Watch, Sudan: "In the Name of God" (1994) p. 39. '99Hamidullah, M., Muslim Conduct of State, (7`hEd. 1977) pp. 111if 200SeeAn-Na'im, A. A., (1990) supra, note 150 above,p. 132.
297
201 There were reports however that this did not prevent its himself requests for application. for Islamic to punishments criminal non-Muslims, especially of the continued application 202In Communications brought against Sudan under the African Charter of alcohol offences. Human and People's Rights, the African Commission on Human and Peoples' Rights has held that "it is fundamentally unjust that religious laws should be applied against nonShari'a judge Tribunals thus that to the only are not apply competent religion. adherents of be by it have to they the tried right a secular court should everyone and non-Muslims, law, Islamic inter has "203 Doi the of non-Muslims under stating alia, position analysed wish. that: "... non-Muslims will not be forced to be governed by the Shari `ah law. All their law in decided be the personal of their own choice.... If with accordance cases will eating pork, drinking of wine or marriages regardless of consanguinity e.t. c. are law, be from by they them their will not prohibited or customary religious permitted by the Shari' ah."204
Sudan stated in its second periodic ICCPR report that the exemption of the southern States from the application of Islamic penal law in 1991 was a practical demonstration of Sudan's adherence and respect for the right to freedom of thought, conscience and 205 The report further stated that Sudan operates on the policy of "there is no religion. in the Qur'an and that the Sudanese Penal Code "does in Religion" as enshrined compulsion but if from Islam the only manifestation an offence, of such conversion not make conversion 206 Article 126 1991 Sudanese the public safety". affects of adversely manifestation such Penal Code makes apostasy from Islam a criminal
offence punishable with death if
it is by The that action. explanation expressly or public an offence only made proclaimed or "if such manifestation adversely affects public safety" is perhaps an attempt by Sudan to depart from the traditional interpretation which considers private conversion simpliciter as law. In death Islamic be there the need to which case under would with apostasy punishable be deemed "adversely to type would of manifestation affect public what clearly spell out is the to This abuse of provisions. prevent necessary safety". the country's
commitment to the prohibition
Sudan's report also indicated
of torture, cruel, inhuman or degrading
201SeeSection 5(3) of the SudanPenal Code 1991. 202SeeLawyers Committeeon Human Rights, Besetby Contradictions, (1996) pp.74-78. 203SeeAmnestyInternational v. Sudan,CommunicationNo.48/90; Comite Loosli Bachelard v. Sudan,CommunicationNo, . . 52/91; Lawyers Committeefor Human Rights. v. Sudan,CommunicationNo. 52/91; and Association of Membersof the Episcopal Conferenceof East Africa. v. Sudan,CommunicationNo. 89/93. See(2001) 8 Internationational Human Rights Reports, No. 1,256 at 266 Par.73. 204Doi, A. R., Non-Muslims Under Shari ah (Islamic Law) (1979) p. 51. 205See UN Doc. CCPR/C/75/Add. 2. Par. 14 and 125.
298
for Criminal Act Procedure Code Penal the that provided penalties and treatment, stating 207 in his HRC's El-Mufti, Mr. to the Sudanese The also stated answers representative, torture. 208 for been had torture. tried in fact and convicted acts of that, officers police some questions The HRC commended Sudan's effort in the above respects but expressed concern that for Islamic death the imposition the offences such as apostasy, committing a penalty of the third
homosexual act and adultery as provided
in the country's
Penal Code were
incompatible with Article 6 of the ICCPR. The Committee also noted that the Islamic Articles 10 7 with and are not compatible stoning and punishments of whipping, amputation 209 Mr. El-Mufti, that: Representative, Sudanese The responded ICCPR. of the "Those three punishments formed part of the Islamic faith, but were (also) had in history First by the occurred all, no stoning of many guarantees. accompanied been had history Islam in Sudan, the ordered only once, stoning of entire and of the in the time of the prophet, because the accused had confessed. For stoning to take be four had the to the to there acts with which accused person eyewitnesses place, No had the An confession. could retract one confessed who accused was charged. had ever been punished by stoning in the Sudan.s21°
In response to the question of amputation, Mr. El-Mufti argued that the punishment was in death. In the in that for resulted victim's of case cases robbery armed convictions enforced food buy has been to theft or medication the punishment would the committed theft where by He that the of whipping be punishment was accompanied also pointed out enforced. not injury, in "211 Authority "it the that slightest not even a scratch. not result must the guarantees for this is found in the practice of the second Caliph, Umar, who used to instruct the whipper in such a manner that your armpit is not revealed. s212 It must be noted "Strike saying: in in is followed this that some Muslim countries where the practice seldom however rule 213 Maududi had also stated in his interpretation is the enforced. of whipping of punishment be It "Flogging to that: not entrusted rough executioners. should should verse on whipping knowledge to to be are and understanding who well aware as what of persons entrusted rather 214 Shari `ah". He indicated that in case kind of beating accords with the requirements of the
206ibid., Par.127 and 133.. . 207ibid., Par. 85 and 86.
208See UN Doc. CCPR/C/SR. 1628. of 02/02/98, Par. 13.
209SeeUN Doc. CCPR/C/79/Add.85 of 19/11/97Par. 8 and 9. 210SeeUN Doc. CCPR/C/SR.1628, Par. 15. 211ibid., Par. 16.
212SeeIbn al-`Arabi, A., Ahkäm aI-Qur'dn (Arabic) (1330 AH)Vol. 2., p.84.
213For instance Mehdi notes the practice in Pakistan that "The flogging of male convicts... takes place in public... and... in hear the screams of the convict from a long distance. " See been has that loud so people can used speaker a some cases, Mehdi, R., The Islamization of the Law in Pakistan (1994) p. 146. 214See Maududi, A. A., Towards Understanding the Qur'än: English version of Tafhim al-Qur'än (1998) Vol. VII, p. 177.
299
fornication, for him touching person convicted of example, or an aged weak once with a of a broom consisting of a hundred straws will suffice to meet the formal legal requirements of a 215 lashes. hundred In response to the argument of the HRC that "other countries which used Koranic law 216 inhuman, from legislation", had eliminated such punishments, which was cruel and their Mr. El-Mufti
stated that the hudüd punishments "had not been invented by the Sudanese
interpretation but Islam, if true mandatory under a were of even some Islamic government In his freedom them. they not applying view constituted were a manifestation of of countries "(a)pplication " further He the that the stated of punishments was well organized and religion. 217 invalid judgements". This response suggests that there were many safeguards to prevent the claim by Sudan that the ICCPR prevails "over all national laws"218 is not taken to include `ah is Shari law God. Apart from the the the which considered as mandatory of of provisions hudüd punishments the 1991 Sudan Penal Code however also prescribes the death penalty for `zir for to offences which such punishments are not specifically prescribed and whipping 219 in hudüd. As earlier pointed out in Chapter four, the State `ah Shari by the as the case of has discretion under Islamic law to prescribe less harsh punishments than the hudüd 22° in the case of ta'air offences. punishments The second representative of Sudan, Mr. El-Radi, observed with respect to the HRC's justice issue "seemed Islamic loom that the large in to the mind criminal on very comments " He his Committee. Islamic that the pointed out researches on criminal justice indicates of that the Islamic sanctions were mostly "hedged by legal impediments" due to the stringent impossible fulfil. that indiscriminate He to that the are almost requirements stated evidential Numeiri in fact, the the punishments of under regime were, a demonstration of enforcement how Islamic law should not be applied. Sudan, he said, had since then embarked on from departure law, that the misapplication of and the courts "were now on a remarkable further El-Radi Mr. that: track". stated right "(f)rom his own studies of Islamic law, he had concluded that apostasy, for example, hadd A offence. person could change his religion, provided he did so not a was danger to the State or to the public welfare. If that line was a causing without be he could prosecuted. Thus the offence became more like high treason, crossed, ns ibid. 216SeeUN Doc. CCPR/C/SR.1628of 02/02/98, Par. 57. 217SeeUN Doc. CCPR/C/SR.1629of 31/10/97,Par. 14. 218SeeUN Doc. CCPR/C/75/Add.2, Par. 61.
219e.g. Criminal breach of trust in case of a public servant or entrusted employee may be punishable with death under Sec. 177(2) Sudan Penal Code 1991.
220Seep. 78 above.
300
which was recognized as punishable all over the world. " He had also concluded as "an Islamic academician, that the drinking of intoxicating liquor was not a hadd offence eithers221
The above representation of the Sudanese delegation at the HRC seems to indicate interpretation Shari `ah by Sudan, different the from the hardto moderate of more a recourse line approach of the past. The delegation finally
assured the HRC that majority of the
222 international human the to Sudanese people shared government's commitment rights.
General Representations on Human Rights Despite the extremely negative criticisms against Sudan by international human rights in its began 1983,223 it Islamisation has its in to policy since continued reiterate monitors determination discharge its international human to a rights obligations representations law. has Islamic It however demonstrated its appreciation the of abandonment also without demand fact hard-line this in its that than the will a rather moderate a approach of interpretation and application of the law in many respects. The above statement of one of its is before Mr. El-Radi, HRC the quite explicit of that appreciation. Its second representatives, State's ICCPR to the referred report many aspects of policy and legislation through periodic its improve international it has human to upon endeavoured rights obligations. which For instance the report mentioned the establishment of an Advisory Council for Human Rights chaired by the country's Minister of Justice with powers to familiarise the authorities ICCPR. Committees the for the Human the Rights public with contents of and concerned Education have also been established in all the 26 states of the Sudan on the advice of the 224 It was also stated that human rights had been introduced as a subject in Council. Advisory 225 Police College from 1993/94 the the Sudan also the syllabus of academic session.
document for by bodies in in UN the treaty to 1998 it the use core a which stated submitted human being the taken to at eliminating obstacles rights awareness pursuant to the measures 226 General Assembly UN human the on raising awareness of rights. resolution of
221SeeUN Doc. CCPR/C/SR.1629of 31/10/97 Par.39. 222ibid. Par. 63. 223Seee.g. Lawyers Committee on Human Rights, Besetby Contradictions, (1996); and Human Rights Watch, New Islamic Penal Code ViolatesBasic Human rights (1991). Seealso the 1994report by Special Rapportuerto Sudan,UN Doc. E/CN.4/ 1994/48. 2245eeUN Doc. CCPR/C/75/Add. 2., Par. 39 and 87. 225ibid., Par. 40.
226UN Doc. HRI/CORE/1/Add.99 of 8/10/98.
301
Based on this moderate approach and combined with sincerity of purpose, it appears that international law human law in Islamic Sudan between the and of rights application the gap time. become with narrowed more will
ISLAMIC
REPUBLIC
OF PAKISTAN
Since Islam was the raison d'etre for the creation of Pakistan, reference to the State's its in has featured 1956.227 "Objectives law The Islamic to all constitutions since adherence Resolution" adopted by the Pakistan Constituent Assembly in 1949 declared it a "sacred by God". limits Pakistan "within State the the to prescribed was considered as a trust" run State "(w)herein the principles of democracy, freedom, equality, tolerance and social justice, (and) (w)herein be fully Muslims be by Islam the observed; shall shall enabled as enunciated to order their lives in the individual and collective spheres in accord with the teaching and Quran Holy Sunna. "228 The "Objectives Islam in the the and out as set of requirements Resolution" became the country's constitutional preamble'229 and its provisions were later, through the 1985 constitutional amendment, absorbed as an operative part of the constitution. It has remained a reference point, since its adoption in 1949, for the application of Islamic 230 in Pakistan. law State law as The first constitution of 1956 provided that "No law shall be enacted which is repugnant in laid down Quran Holy Sunna... Islam the injunctions as the of and and existing law to 231 injunctions. , into Article 1 Constitution 1962 brought be the such with conformity of shall be law "no Islam" later to that should repugnant and was amended to the also provided The 1973 1956 in its the the constitution provision. contained same provision of wordings Article 227. It also provided in its Article 2 that Islam shall be the religion of State. In 1979 four Ordinances were introduced for the enforcement of Islamic criminal law under the Islamization policy began by President Zia ul Haqq in 1977.232The enforcement of Islamic 227See e.g. Justice Shah, N. H., Islamization of Law in Pakistan (1992). See also generally Bokhari, A. H., The Protection of Human Rights in Islamic Republic of Pakistan with Special Reference to Islamic Shari a/ under 1973 Constitution (1998). PhD Dissertation, University of Nottingham.
228SeeConstituentAssembly of PakistanDebates,Vol. V, No. 1 (7 March 1949) p. 1 for the full text of the Objectives Resolution. (All Emphasisadded).
229See. e.g. the Preamble of the 1973 Constitution of the Islamic Republic of Pakistan. 230See Mehdi, R. (1994) supra, note 213 above, p. 72; Justice Tanzilur-Rahman, Objective Resolution and its Impact on Pakistan Constitutional Law (1996); and Justice Shah, N. H., The Objective Resolution and its Impact on the Administration f Justice in Pakistan (1992). 231Art. 198. 232Prohibition (Enforcement of Hadd) Order IV of 1979; Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979; Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979; and Offence of Qazf (Enforcement of Hadd) Ordinance VIII of 1979. See Justice Shah, N. H. Islamization of Law in Pakistan (1992) pp. 3-4; and generally, Waqar-ulHaq, M., Islamic Criminal Laws (Hudood Laws & Rules) with up-to-date Commentary (1994).
302
law was further consolidated in 1991 when the Pakistan National Assembly passed the Enforcement of Shari`ah Act, 1991. Article 3 (1) of the Shari`ah Act provided that: "The Shari`ah, that is to say the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, Article law Its 4(a) Pakistan". be "while that the the of also provided supreme courts shall interpreting the statute-law, if more than one interpretation is possible, the one consistent jurisprudence be by Court". be It Islamic the the thus shall and adopted principles will with (Qur'an Sunnah) Shari `ah State the the the that to and stands as say grundnorm of correct itself have be interpretation the to the will of constitution consistent with Islamic since (FSC) Court is Federal Shariat Chapter There 3A 1973 the established under a of principles. Constitution which shall "either on its own motion or on the petition of a citizen of Pakistan Government, Government Provincial decide Federal the question the or a examine and or 233 is injunctions law law An to the Islam". repugnant any or provision of or not of whether it Shariat Appellate Supreme Court. Bench from lies the the to of appeal The prevalence of Islamic law in Pakistan even in emergency periods was demonstrated in the Provisional Constitution Order No. 1 of 1999 promulgated by the military regime of General Pervez Musharraf that took over power in October 1999. While the regime declared in Section 2(4) the substantive constitution putting abeyance, emergency of of the a state Order provided that: "Notwithstanding anything contained in the Proclamation of the 14th day of October, 1999 or this Order or any other law for the time being in force, all provisions of the Constitution of the Islamic Republic of Pakistan embodying Islamic injunctions including Article 2,2A, 31,203A to 203J, 227 to 231 and 260 (3) (a) and (b) shall be in force to and no provision as aforesaid shall remain in abeyance or be continue deemed to have remained in abeyance at any time. "234
The exemption was deemed necessary "for removal of doubts, " and to ensure "the injunctions in Islamic Constitution the the enforcement of of the Islamic continuity and 235 Republic of Pakistan". Pakistan is a State party to at least eighteen international
instruments relating to 236 law including Women's human Convention. the It has however not international rights 233See Art. 203 of the Constitution of the Islamic Republic of Pakistan (1973). 234Sec. 2(4) Provisional Constitution Order No. 1 of October 15,1999. 235 ibid.
236Genocide Convention (1948); Slavery Convention (1926); Supplementary on the Abolition of Slavery, the Slave Trade Slavery (1956); Convention for the Suppression of the Traffic in Persons and of the Practices Similar to Institutions and and Exploitation of the Prostitution of Others (1950); Convention on the Political Rights of Women (1952); International Convention on the Elimination of all Forms of Racial Discrimination (1965); International Convention on the Suppression Apartheid (1973); Convention on the Elimination of all Forms of Discrimination Against Crime the Punishment of of and Women (1979); Convention on the Rights of the Child (1989) 1949 Geneva Convention 1; 1949 Geneva Convention II;
303
for in Pakistan UDHR ICESCR. the ICCPR the the the voted adoption of or ratified either Assembly different General UN its the expressed a view on the 1948 and representative at in Saudi to the freedom thought, and religion contrast position of conscience of question of during UDHR. latter's led the the to the the abstention adoption of Arabia on which matter With the Islamisation of laws in Pakistan the courts came under the full obligation of implementing Islamic law and their decisions as it relates to international human rights issues have varied in respect of constitutional
rights, women's rights and criminal justice as
below. analysed
Constitutional Rights The 1973 Constitution of Pakistan has a fundamental rights section that provides for the basic civil and political rights. Most of the rights are however subjected to law, public order 237Although Pakistan has ratified neither the ICCPR nor the ICESCR, both its or morality. Federal Shariat Court and its Supreme Court have pronounced on questions relating to the its in law. We Islamic fundamental to the constitution relation of provisions rights scope of international human law. in light decisions the the of rights of shall examine some A recent decision of the Pakistan Supreme Court that has been quite controversial in the 238 Others. is The State Others, human Zaheer-ud-din international v. and and rights sphere of freedom In fundamental that to the litigated the of religion. case right minority on which Ahmadi
group relying
on Article
20 of the Pakistan Constitution,
challenged the
in
1984, which prohibited and constitutionality 239 in Ahmadis Pakistan. The Ahmadis were the the of activities religious criminalised belief due founder be to their that the the to mainly of non-Muslims group, considered of the Ordinance
20 promulgated
Ghulam Ahmed, was a prophet of God. The enactment of Ordinance 20 was thus aimed at "posing" as Muslims or using any of the traditional Islamic epithets. from them prohibiting Section 298 of the Ordinance provided that:
1949 Geneva Convention III; 1949 Geneva Convention IV; ILO Convention (No. 29) Concerning Forced Labour (1930); ILO Convention (No. 87)Concerning Freedom of Association and Protection of the Right to Organize (1948); ILO 98) Concerning the Application of the Principles of the Right to Organize and Bargain Collectively (1949); (No. convention ILO Convention (No.. 105) Concerning the Abolition of Forced Labour (1957); ILO Convention (No. 111) Concerning (1958). Occupation See UN Employment Human Rights Treaty Website at: Respect and of Discrimination-fn htt, 2:Hwww. unhchr. ch/htmi/intlinst. htm and ILO Conventions Treaty Website at: httn"//ilolex ilo. ch: I567/public/enalish/docs/convdisp. htm ; and International Humanitarian Law Treaties Website at: http: //www. icre. org/ihl [25/2/2001].
237SeeArts-8-28 of the Constitution of the Islamic Republic of Pakistan(1973). 238(1993) SCMR (S.Ct)1718. 239SeeThe Anti-Islamic Activities of the Quadiani Group, Lahori Group, and Ahmadis (Prohibition and Punishment) OrdinanceXX of 1984.
304
"298(B) 1. Any person of the Quadiani group or the Lahori group (who call themselves "Ahmadis" or by any other name) who by words, either spoken or written or by visible representation: (a) refers to, or addresses, any person, other than a Caliph or companion of the Holy Prophet Muhammad (Peace be upon him) as "Ameer-ul-Mumineen", "Khalifa-tul- Muslimeen", "Sahabii" or "Razi "Khalifa-tul-Mumineen", Allah Anho";
(b) refers to, or addresses,any person, other than a wife of the Holy Prophet Muhammad (Peacebe upon him), as the "ummul-Mumineen"; (c) refers to, or addresses, any person, other than a member of the family (ahlebait) of the Holy Prophet Muhammad (Peace be upon him), as Ahle-bait; or (d) refers to, or names, or calls, his place of worship as "Masjid";
shall be
for description imprisonment a term which may of either punished with fine. be liable to to three also shall and years, extend
2. Any person of the Quadiani group or the Lahori group (who call themselves "Ahmadis" or by any other name) who by words, either spoken form by to to the mode or refers of call representation, visible or written, or by "Azan" faith "Azan" his by followed the or, recites as used as prayers Muslims, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine. 298(C) Any person of the Quadiani group or the Lahori group (who call themselves "Ahmadis" or by any other name), who, directly or indirectly, poses himself his faith Islam, Muslim, to, as or preaches or propagates refers or calls or as a his faith, or invites others to accept his faith, by words, either spoken or in by any manner whatsoever outrages or representations, or visible written, the religious feelings of Muslims, shall be punished with imprisonment of for description a term which may extend to three years and shall also either be liable to fine.
The Ordinance was first challenged in the case of Mujibur Rahman v. The Federal Court (FSC) Shariat being before Federal to Pakistan the as repugnant Government of '240 Muslims Islamic Ahmadis held FSC to The the that injunctions. were not according Islamic "posing" Muslims from Ordinance them as was considered proper the prohibiting tenets, so 241 Ordinance in law. Zaheeru-ud-deen thus the Islamic the to challenged and not repugnant freedom fundamental Ahmadis to the Court right of religion as as violating Supreme by Article 20 of the Pakistan Constitution. Article 20 of the Pakistan Constitution guaranteed that: provides
240(1985) PLD (FSC) 8. 241Other scholars do contest whether the Ahmadis' position about their founder makes them non-Muslims since they still Prophet in Muhammad. See T., "Freedom Religion Mahmud, God the the oneness of prophethood in and of of the believed Minorities in Pakistan: A Study of Judicial Practice" (1995) 19 Fordham International Law Journal 40 at 43. Religious and 7 footnote in thereof. cited See materials
305
"Subject to law, public order and morality: (a)
every citizen shall have the right to profess, practise and propagate his religion; and
(b)
every religious denomination and every sect thereof shall have the right to its and manage religious institutions. " maintain, establish,
The SupremeCourt held by a majority decision of four to one that the Ordinance was State has because duty the the to protect the a constitutional of constitution not violative purity of Islam.
The Court said it was clear that Pakistan had constitutionally
adopted
Islamic injunctions as contained in the Qur'an and Sunnah as its positive law, thus "even the 242 in Constitution Rights Islam". the the Fundamental must not violate as given norms of A critical perusal of the judgement would indicate that the court's reasoning was against finding Ahmadis the that the background were not Muslims and thus do not have a of the Muslims "pose" their Islam. The Court that to or represent religious as activities as of right did not strictly address the issues involved as a straight constitutional question of the right to freedom of religion. It saw the matter as an issue of "religious misrepresentation" by the Ahmadis, rather than that of freedom of religion simpliciter. The Court thus relied, inter alia, law, Article 20, "subject to the public order and morality" proviso of pointing out that the on by Ahmadis leader the their about and their position concerning Prophet misrepresentation Muhammad as the final prophet was injurable and provocative to the feelings of the main 243 lead breach to The Court gave priority Muslims, the which may body of of public peace. to the constitutional duty of the State "to protect the purity of Islam", which the Constitution had declared as the State religion (i. e. the ideology of the State), above the right to freedom individual. the worship of of conscience and In the concluding part of its judgement, the Court however stated that the injunctions of Islam, which were the supreme law of Pakistan still guarantees the rights of the minorities "in such a satisfactory way that no other legal order can offer anything equal. " Perhaps the it it Zaheer-ud-din that to trying clear make considered as a case of religious court was by Ahmadis the than freedom the to rather strictly a case of right religious misrepresentation 244In other words, the Ahmadis had a right to profess the faith of their of a minority group. include did but the fundamental to this not right misrepresent tenet of Islam as a choice, 1718at 1774. 242 SeeZaheer-ud-din v. TheState(1993)SCMR
243ibid at p. 1777. 244The court had brought in the analogyof trademark infringement and deceptive trade practicesin its considerationof the has it. been by This Mayer, distinguish A. E., "Judicial criticised to Dismantling of Constitutional protections probably case,
306
245 is doubt There however Muslims. facts by that the the no of on of majority professed Zaheer-ud-din, the Human Rights Committee will find a breach of the right to freedom of thought, conscience and religion under Article 18 of the ICCPR. A less controversial area where the courts have made a "conscious attempt to combine fundamental rightsi246 is that of Public Interest law Islamic harmonise secular and and Litigation. This was first manifested in 1988 in the case of Benazir Bhuto v. The Federation 247 Court locus Supreme the traditional the Pakistan side-tracked stringent rules on where of Islamic Constitution the the that secular and elements of of combination a standi and stated inspired the court to adopt a more relaxed interpretative approach in the procedural jurisdiction for fundamental its the the enforcement of writ rights prerogative requirements of justice The Constitution. the maintenance of substantive as enjoined under provisions of Islamic
law has since then been greatly emphasised to enhance the enforcement of
fundamental rights in public interest litigation. Thus in Akbar All
v. Secretary, Ministry of
Defence, Rawalpindi and An248 the Supreme Court noted that: "Since the introduction of Islamic law and jurisprudence in our Constitutional setup (sic) including the Objectives Resolution enacted by the first Constituent Assembly in 1949, the emphasis on real substantial justice has increased manifold. So much so that although it is not enshrined in the Constitution as a fundamental right, in the justice is (sic) by has Islam, to the obtain as right ordained setup constitutional entire become inviolable right of citizens of Pakistan".
Lau has observed that this incorporation of an additional right to obtain justice as derived from Islamic jurisprudence has not only widened the concept of public interest litigation and relaxed the procedure governing the writ jurisdiction
of the Supreme court, but 249 it the the range of rights protected and guaranteed under has also widened constitution. 250 Court held in Supreme Darshan Masih basis State the The that that also v. was on that "(fundamental rights) might cover all aspects of human dignity, deprivations and misery,
for Religious Freedom: The Grim Legacy of Zaheeruddin v. State", Conference Paper at the Cairo Conference on Democracy and the Rule of Law, 7`h-9' Dec. 1997. 245The recognition of the rights of the Ahmadis as a minority group is inferable from an amendment to Article 106(3) of the Constitution allocating to them, along with other minority groups, additional seats in the Provincial Assemblies. See Zafar, E., The Constitution of the Islamic Republic of Pakistan 1973 with Commentary (n. d. ) p. 437. 246See Lau, M., "Islamisation of Laws in Pakistan and its Impact on the Independence of the Judiciary in Pakistan", Conference Paper at The Cairo Conference on Democracy and the Rule of Law, 7`h- 9`n Dec. 1997, p. 5. See also Khan, M. H., Public Interest Litigation: Growth of the Concept and its Meaning in Pakistan (1993) pp. 48-53.
247(1988) 40 PLD (S.Ct)416. 249(1991) 3 SCMR, 2114.
249See Lau, M., (1997) supra, note 246 above, p. 7. See also Lau, M., "Islam And Judicial Activism: Public Interest Litigation And Environmental Protection In The Islamic Republic Of Pakistan" in Boyle, A. E., and Anderson, MR., Human (1996) 285 Protection Environmental Approaches p. to at 295. Rights
250(1990) 42 PLD (S.Ct) 513.
307
including those rights in this behalf which are ensured, in addition, as basic human rights in 251 Islam.,, The Federal Shariat Court (FSC) has also considered petitions relating to human rights issues in which it rejected suggestions to restrict the rights of women on the basis of Islamic law. In Ansar Burney v. Federation of Pakistan and Others252 the petitioner challenged the judges that arguing magistrates such appointments violated or as women of appointment Islamic law. The court disagreed with all the grounds of the petition and disallowed it. Also 253 Government Punjab Ano., Ano the petitioner in Mussarat Uzma Usmani and of the and v. had complained of girl candidates being denied admission into medical colleges on grounds law "Ehsan" (i. [juristic The Islamic Istihsan discrimination. principle of e. of gender Court invoked by difficulty "nonto the technical the circumvent of was preference]) impleadment" to sustain the petition.
The FSC then went on to find a violation of the
law by before the the to as guaranteed constitution. equality right petitioner's One observes therefore that apart from the Zaheer-ud-din case the courts in Pakistan law interpretation Islamic broad to ensure, in combination with the of have adopted a fundamental rights provisions of the constitution, the maximum guarantee of constitutional Chief Justice Afzal Zullah (as he then was) According human to international rights. and Constitution by Pakistan the rights conferred "are by and large comprehensive and no internationally recognized Human rights if In Human Rights which them. any case of at all any remain out ordinarily would by (the) Chapters Constitutions facie (sic), the the of conferred prima are not necessary aid comes via Art 2A which enunciates rights and obligations under Islam and which is a substantive part of our constitutional set-up and which the courts are Talking Islam, to. to trying about effect rights under give some of them also definitely stand on a higher pedestal as compared to the internationally recognized Human Rights. For example, the right to obtain justice and the right to dignity of the man are so pronounced in Islam that they are made more comprehensive than similar 254 in other systems". rights provided
This no doubt expresses a very generous legal interpretation that facilitates the law to achieve the ideals of human rights in Muslim States. It also Islamic of employment demonstrates the important role of the judiciary, as interpreters of law, towards the
human international guarantees. rights of enhancement
251ibid. at 545. 252(1983) 35 PLD (FSC) 73. 253(1987) 39 PLD (Lah. )178.
254Zullah, A., "Human Rights in Pakistan" (1992) 18 CommonwealthLaw Bullet in, No.3, p. 1343 at p. 1346
308
Equality and Non-discrimination Pakistan has often emphasised its commitment to the principle of equality and non255 forums. Article 25(1) of its Constitution provides that: discrimination at UN human rights "All citizens are equal before the law and are entitled to equal protection of law" and Article 25(2) provides that: "There shall be no discrimination on the basis of sex alone". In the case Supreme Court held Pakistan Din256 for Roshan Jan the that the Fazal provision v. of in imposes light "read Islam Constitution the the of a positive obligation on all equality under judiciary, including interest to take to the of the the active measures safeguard state, organs 257Article 36 of the Constitution also "The State that: provides children". shall and women of including interest due in legitimate their the of minorities, and rights representation safeguard Zaheer-ud-din The Provincial Federal case earlier examined above has services". and the however been criticised as a decision violative 258 international human rights circles.
of religious non-discrimination
within
Women's Rights Pakistan ratified the Women's Convention in 1996 with a declaration that: "The Republic Pakistan [said Government Islamic Convention] [the] by to the the of of accession is subject to the provisions of the Constitution of the Islamic Republic of Pakistan" and a does not consider itself bound by paragraph 1 of article 29 of the "it that reservation 259 Since the interpretation of the constitution of Pakistan is itself subjected to Convention' . Islamic law as earlier identified above, its declaration subjecting the Women's Convention to indirectly it law. Islamic Sweden, Denmark and Portugal to Constitution also subject will the submitted objections opposing the declaration as inadmissible under 260 Pakistan has not submitted any report yet to the Committee on the law. international
have however
Women's Convention. The Pakistan Enforcement of Shari'ah Act, 1991 provides that the rights of women as Constitution shall not be affected by the enforcement of the Shari `ah.261 by the guaranteed However, some aspects of the Pakistan criminal ordinances have been very controversial in The Zina Ordinance of 1979, the Qanune-e-Shahadat (Law of to rights. women's relation 255Seep. 316 below. 256(1990) 42 PLD (S.Ct) 661. 257SeeLau, M., (1997) supra, note 246 above,p.8. 258Seee.g. Mayer, E.A., (1997) supra note 244 above.
259See UN Human Rights Treaty Website at: http: //www. unhchr. ch/htnil/intlinst. htm [25/2/2001]. 260See ibid.
309
have Ordinance been Qisas Diyat 1984 the Order all and criticised mostly Evidence) and of 262 discriminatory. being by women as gender In a line of cases, men accused of rape under the Zina Ordinance have been released for have for zir female to their convictions earned of punishment victims want of evidence while is (which for due to based their considered as confession allegation, zing rape own on zina 263 from based The the rape. on pregnancy resulting failure to establish the alleged rape) or 264 in State Safia Bibi. The has been in that which a girl was v. respect most celebrated case by her employers. The trial court acquitted the two accused men been have to raped reported for want of evidence and sentenced the girl for zinä based on her pregnancy. This attracted a lot of demonstrations and protest by women groups in Pakistan because the girl was blind. judgement Court Shariat the Federal the and acquitted the girl by reversed Eventually be for the an accused should of considered sufficient statement that holding self-exculpatory her if to there prove guilt. The evidence of the rape no other evidence was her acquittal it is have by "real does to except substantiated much value evidence of seem still not victim in indicated Shah Bahadur State265 The the the the case of as v. victim of part resistance" on . had "real that the held there that evidence victim offered no any the was court where doctors report found no injury to her thighs, legs, elbows, arms, because the resistance" knees, face, back and buttocks. It has been observed that women are thus reluctant to report for being fear their for on own allegation convicted zinä of rape where not of cases rape 266
successfullyproved.
It looks strange that a rape victim could be convicted for zind on the basis of her own Ordinance defines "wilful intercourse between in fact the as sexual zinä a allegation when 267 being Perhaps be to the each married other". without argument would woman a man and law, knowing fully the to the that use allegation of rape escape might well offenders that zinä it is difficult to prove rape. In that case there should be a further burden of proof upon the be heavy) in to (which the the this to establish case very consent of victim must prosecution be before in Nevertheless, intercourse the may established. alleged rape cases zinä the sexual the to exploiting allegation of rape escape offenders punishment must not zinä of possibility
261Art. 20.
262See generally Section on Pakistan in Women Living Under Muslim Laws (ed. ), Dossier 3, (1988), particularly pp. 33-38. 263See Jahangir, A., "How far are Penal Laws Effective in Protecting Women", in Women Living Under Muslim Laws (ed), Chowdhury, N., See "What Pakistani Women Face" in Women Living Under Muslim 5. 33 (1988) 3, also and n. p. Dossier 70. I (1986) Dossier p. (ed), Laws
264(1985)37 PLD (FSC) 120. 265(1987) 39 PLD (FSC) 11.
266See Mehdi, R., (1994) supra, note 213 above, p. 126.
267c.. f JusticeHussain's observationon this point in Safla Bibi, supra at 123,Par.14.
310
be used to close the door of justice against real victims of rape. Advocates of women's rights have argued that the requirement of four Muslim male adult eyewitnesses for the maximum 268 for the to rapist and makes women especially vulnerable rape protects violence. conviction It must be noted however that the to zir punishment for rape under the Zina Ordinance does judge difficult The for `zIr to may evidence. convict a rapist such punishment on require not in is higher the that than that evidence, and punishment case also circumstantial compelling 269It is a fact that rape cases are normally difficult fornication. cases, the risk of of adultery or the victim ending up being punished for zinä makes it more difficult
under the Zina
Ordinance.
Another area of law touching on women's rights is that of evidence. Section 17 of the Qanune-e-Shahadah (Evidence Law) Order, 1984 provides that: "The competence of a person to testify and the number of witnesses required in any in injunctions be determined the with accordance of Islam as laid down in case shall the Holy Quran and Sunna. Unless otherwise provided in any law relating to the Enforcement of Hudood or any other special law - (a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly; and (b) in all other matters the court may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant.
This provision is a codification
of both the Qur'anic provision on evidence which
in (in the two testimony the place women of man one of commercial transactions) requires law Islamic traditional the of which extends the provision of two male rules and also The be hudüd than inclusion to the other question cases zina. may raised whether witnesses if has "so the here. that The may remind one other, necessary" the any significance clause of indicate this that Qur'anic to the two clause refers provision requirement of women actual witnesses.
"'
What if it is shown that there is no necessity for one woman to remind the other
due to the experience and knowledge of the one? Would the testimony of a single woman in is it If the then this negative answered shuts out the possibility of considering then suffice? in modem commercial transactions as a basis of validity for the the experience of women female in if transactions in that doing such single even a of will assist substantive evidence justice. From that perspective it has been argued that this belittles "the status of several
26$"Women StruggleAgainst Zia's Version of Islam" in Women Living Under Muslim Laws (ed), Dossier 1 (1986)p.62. 269The ta'zIr punishmentfor rape is 25 yearsimprisonmentplus 30 lasheswhile that of fornication or adultery is 10 years imprisonment plus 30 lashes.Seealso Carroll, L., "Rejoinder to the Proceedingsof the Seminaron Adultery & Fornication in Islamic Jurisprudence:Dimensions& Perspectives"(1983) 3 Islamic and ComparativeLaw Quarterly, 66. 270SeeQ2:228.
311
judges, for lawyers have bankers, they to and often administrators, women working as 271 drawn by documents them". to up attest their and peons clerks male request Women have also shown great resentment in respect of the exclusion of female evidence 272 Ordinances. Advocates Hudood the of women's under to secure maximum punishment benefit The female discrimination it wisdom and of excluding women. against rights see as a from however be hadd the from may viewed perspective punishments securing testimony for the the scope application of of restricting means as a serves that such exclusion actually is is It its that the totally due to evidence of women not severity. hudüd punishments is from hadd law. Their in Islamic only excluded securing evidence inadmissible criminal instance, For `zir the for to when proved. is while punishments securing but admissible it limb, in the theft not secure amputation can may of a case a testimony of a woman zir The to to to thief the punishment where proved. same applies under prison certainly send hudüd The the to hudüd of evidence of women secure exclusion punishments. all other discrimination be therefore as seen not punishments may hudüd the punishments. of application limitation upon
per se, but as a procedural
For the proof of murder cases the Qisas and Diyat Ordinance, 1990 provides for either in Article "by 17 the by the as provided of evidence or accused confession the voluntary 273Since gisäs is different from hadd and the Qisäs and Diyat 1984' Qanun-e-Shahadat, . Ordinance does not itself exclude the testimony of women, the court would be right under Article
17 of the Qanun-e-Shahadat to admit the testimony of women in murder cases. In
had for Qanun-e-Shahadat draft the requirement initial the specifically provided of fact the by lot by of controversy was met a and which resentment witnesses, of two male adult if in It in then that, Pakistan. the reasonably a man argued was murdered was women groups if instance, killed for in daughter the his or a woman was presence of and wife of presence female the testimony the daughters, then eyewitnesses would not grant the of her two 274 The fact that the provision was removed from the final for murder. maximum punishment (qisas) from Article 17 interpretation to the strict exclude murder cases of draft supports an Court Shariat Pakistan The Federal two of alluded, witnesses. obiter male of requirement
271See Patel, R., Islamization of Laws in Pakistan. (1986) p. 81. 272The majority juristic opinion is that female evidence is not admissible for gisds and hudüd punishments under Islamic is 2 in however the that of women acceptable that evidence opines Zähirl along-side man of one gisäs and The school law. W., Al-Figh Al-Islami See Al-Zuhayli, than wa-Adillatuh (Arabic) (1997), Vol. 8, p. 6045. zina. hudüd offences other 273See Art. 304.
274See"Women StruggleAgainst Zia's Version of Islam", (1986) supra, note 268 above.
312
dicta, to the above arguments in its judgement in the case of Ansar Burney .v. Federation of 276 275 from Muhalld Ibn Hazm, the The Court, citing Pakistan. of observed that: "The view that woman cannot appear as a witness in matters of Hudood and Qisas is based Qur'an is Hadith. is based It juristic on either or and not not view on only a he in have Prophet Holy the which might refused to accept the of any precedent "277 in matters. such evidence of a woman
The above opinion would however be a departure from the general traditional juristic is for two testimony the that adult witnesses generally male required of a also only position gisäs conviction. The traditional rule of four male witnesses in adultery/fornication
cases is derived from
"And 4: 15 Qur'an those of your women who commit interpretation which says: of the lewdness, take the evidence of four witnesses from amongst you against them... ", while the is derived for from first the the two offences other witnesses part of rule of male of rule "... And 2: 282 in Qur'an two get witnesses out of your own men, and says: which testimony if there are not two men then a man and two women... ". There have been contentions, as in Qur'an 2: 282 in Chapter 6 thesis that the this to provision of refers only observed already 278 is this rule that was extended by the classical Islamic jurists to It transactions. commercial in except matters where women of evidence were considered other aspect every almost cover from future Apart "financial knowledge. hudüd or obligations" and exclusive to possess discretion of accepting the testimony of Ordinance the Evidence the the gives courts cases, in last This leeway for tends to any other case. proviso give woman a slight one or one man little further Islamic law. the than traditional the to evidence rules a rules of extend the courts With respect to the value of compensation for murder (diyah) the Qisas and Diyat Ordinance provides that the court shall fix the value of the diyah subject to the injunction of 279 Sunnah. Qur'an Under traditional Islamic law the in Holy down the and the Islam as laid is half The does diyah that the of a man. ordinance a woman of not specifically value of injunction "the Islam laid down in but the to Holy the this, of value as subjects mention Qur'an and the Sunnah". The Qur'an does not state any difference between the value of the Qudämah Ibn for woman. also states in his al-Mugni that Ibn Ulyah and diyah a man or Asam were of the opinion that the blood money of the female was the same as that of the
275(1938) PLD (FSC) 73 at 90 par. 69. 276Ibn Hazm, M. A., al-Muhallä (Arabic) (1932), Vol. 6. p.430. 27 Seenote 272 above. 278See pp. 141-43 above. 279See Section 323.
313
he in have "The blood Prophet to Tradition the based was which reported said: of on a male 280 (same Court If 100 is that female the to for as the of a male). camels" equal money in laid down Qur'an Sunnah" Holy Islam injunction the "the then follow and as to of chooses it could depart from the position established under traditional Islamic law and make no difference between the value of the diyah of the male and female. The initial draft of the Ordinance had actually provided that "If the victim was a female, her diyat shall be one half in final Ordinance to the the the The this version of wording of changing that of a man". of intention be depart from 323 to the in Section thus construed as an could present provision former position under traditional Islamic law.
Islamic Criminal Justice The Offences Against Property (Enforcement of Hudood) Ordinance of 1979 provides hand for liable law the theft to Islamic conviction of on of amputation for the punishment 281 for hadd is however The Ordinance. the subjected to the strict conviction hadd under failing be liable law, Islamic the to accused would which only of requirements evidential is It Code 1860.282 Penal Pakistan the that the of observed old zär under punishment to Islamic law, have the to strict evidential requirements of exploited mainly Pakistan courts basis lack have The hudüd the the of of on proof. courts punishments of the application avoid `zir punishments in form of imprisonment, fine or whipping. In the theft imposed to only 283 hadd Zullah, Ghulam Ali, Justice the State The reversing punishment of v. case of below two that the courts stated amputation on appeal, "fell into error in ignoring a well-established and an uncontroverted principle of Hudood that not only the maximum benefit of every reasonable doubt will be be but is inflict Hadd that to to the to also effort made not a so accused, extended 284 legitimate by be it long (as) can and established means" all avoided
The Zina Ordinance also criminalises
fornication,
adultery and rape. The hadd
both adultery and a married rapist is death by stoning (rajm), for fornication for punishment for is lashes hundred and an unmarried rapist one hundred lashes or such other is one 285 include death In 1981 the the punishment. may punishment which of stoning punishments, 280SeeIbn Qudämah,M., al-Mugn1(Arabic) (1981), Vol. 7, p.797. Ibn Qudämahhowever opines that this Tradition blood Companions female is half that the the the that the money of of of male. the consensus contradicts 281See Sec. 5 and 9 the Offences Against Property Ordinance 1979. 282See Sec. 7,13 and 14 ibid. 283(1986) 38 PLD (S. Ct) 741. 284ibid., at 759.
285SeeSections5 and 6.
314
(rajm) was challenged as being un-Islamic in the Federal Shariat Court. The court ruled by a decision of four to one that the punishment of stoning was repugnant to Islam. 286 The decision of the majority was based on grounds that the punishment cannot be specifically found in the Qur'an. That decision corresponded with the view of the Mu `tazilah and Khawärij
sects who also oppose the punishment of rajm on grounds that it has no existing
Quranic evidence. All the orthodox schools of Islamic jurisprudence however base the 287 the Sunnah.
punishment of stoning on The traditional `ulamä' strongly condemnedthe decision of the Federal Shariat Court it forced Shariat State Bench to to Supreme the Court. the the against was appeal of and Before the appeal was heard however, the Federal Shariat Court was reconstituted and the constitution
was also amended allowing
the Federal Shariat Court to review its own
decisions. The reconstituted court reviewed the earlier decision and declared in 1982 that (rajm) be found in the though the Qur'an, of punishment stoning cannot specifically even it in Sunnah for is the and thus the punishment was lawful under Islamic there authority law288 The punishment of stoning has however never been enforced in Pakistan due also to its to establish application. The hadd punishment for zinc the strict evidential requirements four the the trustworthy, sane Muslim accused a confession of or evidence of either requires intercourse to the the actual of commitment eyewitnesses unlawful sexual male at the adult 289 Both the in time place. confession and evidence and are retractable, which case the same 290 Allah be In Bux Ano The State hadd punishment cannot enforced. the trial court and v. had sentenced the man (who was married) to hadd punishment and the girl (who was a lashes hundred basis the decision to to The the on one of confession offence. was spinster) Shariat Court Federal by the that the accused persons had on appeal, on grounds aside set Section 9(2) to Zina Ordinance. their the Due to the pursuant confessions of retracted in Justice Zullah the the the words courts, of punishment, of seem to always strive severity "not to inflict a Hadd so long (as) it can be avoided by all legitimate and established 291The Zina Ordinance provides that where there is not enough evidence to convict means". for the hadd punishment, the ta'zir punishment of imprisonment, whipping or a fine may be
286Hazoor Bakhsh v. Federation of Pakistan (1981)38 PLD (FSC) 145. .
287See e.g. al-Juzayri, A. R., Kitäb al-Fiqh 'alä al-Madhähib al- Arba'ah (Arabic) (7`h Ed. 1986), Vol. 5, p. 69. 288See Federation of Pakistan v. Hazoor Bukhsh and Others, (1983)PLD (FSC) 255. .
289Seee.g. Maududi, A. A., (1998) supra, note 214 above,pp149-179 for a detailed discourseon the nature and punishment law. Islamic under of adultery/fornication 290(1982) 34 PLD (FSC) 101.
291SeeZullah, A. (1992) supra, note 254 above.
315
292 The ordinance does not provide any standard of proof for the application of imposed. judge's determination discretion. leaves but to the the zir to punishments The application of the hudüd punishments in Pakistan has thus been more symbolic than practical. their
It seems that they exist in the statute books only as a matter of faith to validate
divine sanction, while
every legitimate
means is always sought to avoid their
has "The Mehdi due that: hadd (in trial their to observed of cases severity. under application Pakistan) has been nothing but an intellectual exercise, while the (old) PPC (Pakistan Penal Code) still applies for practical purpose".
293
One can observe therefore that in the codification of Islamic criminal law in Pakistan, a jurisprudence depart from is Islamic traditional to some made as much as cautious attempt in a manner that promotes a benevolent application legitimate through means every possible international human rights. In doing so, the `ah Shari the of guarantee the encourages and of legislature however tries to satisfy both the hard-line and moderate Islamic pressure groups leave its the transferring the task as vague thereby provisions as possible, sometimes of and interpretation to the courts. The courts as analysed above have in most cases tended towards law Islamic interpretation bridges the of which certainly and application gap moderate a law and the demands of international human Islamic between the of application considerably State. in the rights
General Representations on Human Rights Pakistan's representatives to the UN continue to assert a commitment to international human rights objectives of the UN but often with reference to Islamic law and to the need for 294 At the fifty-fifth session of the UN Commission on Human in that regard. co-operation Rights in March 1999, the Pakistan permanent representative to the UN, Ambassador Munir Akram, had reiterated Pakistan's support for "the promotion and protection of human rights 295 Similarly, Pakistan's representative at the through cooperation and not confrontation". fifty-sixth
in Commission Human Rights April the on of session
2000 had restated the
had human "the to that Charter the rights and asserted principles commitment of of country's Declaration Human Universal Rights Nations the United of and mirrors the values of a the just Islamic society".
She then went on also to state, inter alia, that Pakistan had declared
292See Sections 9 and 10.
293Mehdi, R.,(1994) supra, note 213 above,p. 115. 294Seee.g. Website of PakistanMission to the UN at: http://www. un.int/pakistan/ [13/12/2000].
295See Statement By Ambassador Munir Akram at the 55 Session of the Commission on Human Rights, March 23,1999, itu. int/pakistan/55%20CHR-Itcm`/`203. http: //www3. Online: 3. Available Par. htni [8/3/2001]. Geneva.
316
least Human Dignity Rights Human that Year two civil 2000 the and and at of the year as human Commission field A Status in the be the rights. of on of yearly given awards would Women had also been established, and a directive had been issued reaffirming that the killing" "honour of practice apprehended.
was murder and any perpetrator of that practice would be
The representative also declared the possibility
of Pakistan ratifying
the
ICESCR before the end of the year 2000.296
REPUBLIC
OF TUNISIA
The caseof Tunisia differs from the first four Muslim Statesearlier examined above, in is in found law law. The Islamic the trace the that only area of personal of the sense family law been land in had law Tunisia to Islamic restricted and ownership application of in late There Shari 'ah courts then French during the century. were nineteenth rule matters Islamic law jurisdiction traditional those applying matters, civil according on that exercised jurisprudence. Islamic Hanafi French Mäliki the treatises schools of and of to the classical including in by criminal law. Thus at matters all other law was applied secular courts in has Tunisia law did this in Islamic 1956 and not apply continued up criminal independence to the present period.
297
The discrimination suffered by Tunisians under the colonial French administration had, "accentuated the people's consciousness of the importance of rights and Mayer, to according 298 While "Islam provided the moral, cultural, and ideological freedoms". democratic in Tunisia's France for formulate to struggle resistance" against popular symbols needed 299 form of governance was constitutionally adopted after a republican independence, 300 best for it belief human the the that guarantee was respect of rights. independence on the declared "to Constitution faithful the the the will of the people remain of However, preamble Constitution is Article 1 Islam the Islam" that the also of stated and to the teachings of formally by State Although State. the total the was not proclaimed secularism as religion of independence in has been instance, Turkey, for the governance outlook of since the case, was
296SeeUN Doc E/CN.4/2000/SR.25, Par. 11-12.
297See e.g. Mahmood, T., Statutes of Personal Law in Islamic Countries, History, Texts and Analysis (2"d Ed., 1995) p. 42. 298See Mayer, A. E., "Human Rights" in Esposito. J.L. (ed. ) The Oxford Encyclopaedia of the Modern Islamic World (1995) 143. 299See Entelis, J.P., "Tunisia", in Esposito. J. L. (ed. ) The Oxford Encyclopaedia of the Modern Islamic World (1995) Vol. 4, Salem, N., Habib Bourguiba, Islam and the Creation of Tunisia (1984) pp. 132-166. See 236; also 235 f0° at
SeePreambleof the Tunisian Constitution (1991).
317
301 Apart from Article 1, the only other substantive constitutional in nature. very secular in Article 38 is President that Islam the the the to religion of provision of provision referring the Republic is Islam. Tunisia is a State party to both the ICCPR and the ICESCR. It has also ratified at least 302 human The State has emphasised in its rights. 32 other international treaties relating to bodies that it had "adopted a dynamic interpretation of Islam" and UN treaty the to reports independence "had been its legislation, modelling a new society the since that country's Islam, the thought framework abandoning static models the gradually of modern of within inherited from traditional society (and) concerned with following the principles of religion 3o3 without sacrificing progress" . Constitutional Rights The 1991 Tunisian Constitution provides for a combination of political and civil rights include, The to constitutional rights rights. right and cultural personal social and economic, 305 304 freedom belief; to equality; of expression and right integrity, conscience and 306 right to privacy; 307 freedom of movement and domicile; 308 freedom from assembly; 309right to presumption of innocence; 310right to property; 311right to asylum; 312 expatriation; 301Art. I of the Tunisian Constitution states that: "Tunisia is a free State, independent and sovereign: its religion is Islam, its language is Arabic and its form is a Republic. " 302Slavery Convention (1926); Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and (1948); Convention Relating to the Status of Refugees (1951); Genocide Convention (1956); Slavery Similar to practices (1967); Convention Political Rights Women (1952); Refugees Convention Status the to the Relating of of of Protocol (1954); Convention Nationality Persons Stateless the Status on of Married Women (1957); Convention of the of to Relating Marriage (1962); for Marriage Registration International Convention Age Minimum Marriage, of and on the to Consent (1965); Convention Non-Application Racial Discrimination Statutory Limitation Forms the to on of of all of Elimination (1968); OAU Convention Governing Humanity Specific Aspects of Refugee Problem in Crimes the against Crimes War and Suppression Punishment Crime Convention (1973); Convention Apartheid the the International and of (1969); on of Africa (1979); Against Women African Charter Discrimination Human Forms Peoples Rights Elimination of on and all of the on in Sports (1985); Convention Apartheid Rights Against Convention the on International of the Child (1989); 1949 (1981); Convention Geneva Geneva 111; 1949 Convention Convention II; 1949 IV; Geneva Protocol I 1949 I; Convention Geneva Geneva Conventions (1977); ILO Convention (1977); II Additional Protocol Conventions to the Geneva the to Additional Concerning Convention (No. 87) Freedom (1930); ILO Association Labour Protection Forced Concerning of and 29) (No. Concerning the Application of the Principles of the Right to Convention (No. 98) ILO (1948); Organize Right to of the Concerning (1949); Convention (No. 100) Equal Remuneration ILO for Collectively Men Bargain and Organize and Women Workers for Work of Equal Value (1951); ILO Convention (No. 105) Concerning the Abolition of Forced Labour; Cruel, Inhuman or Degrading Treatment or Punishment (1984); ILO Convention (No. Torture Against other and Convention in Respect of Employment and Occupation (1958). ILO Convention (No. 122) Concerning Discrimination Concerning 111) Convention Against Discrimination in Education (1960). See UN Human Rights UNESCO (1964); Policy Employment htm [25/2/2001]]; and ILO Conventions Website at: htt//www. Website ch/htmi/intlinst. unhchr. at: Treaty htm [25/2/2001]; International Humanitarian I567/public/english/does/convdisp. Law Treaties ilo and ch: httn"//ilolex [25/2/2001]. icrc. //www. http: org/ihl Website at:
303SeeUN Doc. A/50/38, of 31/05/95, Par. 219-221. 304 Art.
5.
305 Art. 6. 306 Art. 8. 307 Art. 9. 308 Art. 10. 3°9 Art. II.
318
313 is It that the to rights are mostly addressed at citizens and Article observed vote. right and 7 also provides that the rights are subject to conditions established by the law.
Equality and Non-discrimination Article 6 of the Constitution provides that "All citizens have the same rights and the before law". There is duties. They the are equal no specific provision same discrimination. constitution,
The HRC has alluded to the provision
of Article
on non-
38 of the Tunisian
which provides that the religion of the head of State is Islam, as a legal
impediment to the equal participation of non-Muslims in presidential elections, and called for 314 It is important to note however that the Core Document forming part of the its review. in indicated Tunisia HRC 1994 by the to that almost the whole population submitted report 315 is Ninety-eight Muslim. is the Tunisia per cent of population recorded to be Muslim of 316 is Christian Jewish It is arguable and respectively. while one per cent each recorded as it is State, logically followed Islam the the that the President religion of adopted as that since 317 ideological for Despite Tunisia's be Muslim consistency. secular nature of must instrument of legitimacy utilised by the government Islam very strong remains a governance, institutions language Islamic independence. its and are more often than not, used to since further the goals of the State and to acquire authenticity for its social and legal reforms in the Islamic
culture of the people. The provisions of Articles
I and 38 of the Tunisian
Constitution may therefore be seen as constitutional expressions of the Islamic identity of the Tunisian people.
Women's Rights There has been radical reforms to traditional Islamic personal law in Tunisia to a point independence, first head Immediately the President Bourguiba, after of state, controversy. of Islamic laws in the traditional Tunisia. the Amidst of personal reform on applied a embarked lot of controversy the Tunisian Code of Personal Status was enacted in 1956 to replace the
310Art. 12. 311Art. 14. 312Art. 17.
313Art. 20 &21. 314SeeUN Doc. CCPR/C/79/Add.43 (1994), Par.18. 315SeeUN Doc. HRI/CORE/1/Add.46, Par. 24 statesthat: "In 1991 the population of Tunisia was 8.2 million. Tunisians are Sunnite Muslims most of them of the Maliki rite. There are also a few thousandJewsand Christians in Tunisia." 316SeeCIA World Factbook(2000). Online Edition at: bttp: //www. cia-gov/cia/l)tiblications/factbook / [10/6/2001]. 317Pakistanhas a similar provision in Arts. 2 and41 of its Constitution. Seealso Article 115 of the Constitution of Iran.
319
in family law Islamic the then shari'ah courts. The Code was declared applicable traditional in law. ensuring equality particularly at of aimed gender personal step status necessary a as The State sought support for its reforms from the views of early advocates of Islamic liberalism such as Jamal al-Din al-Afghani, Muhammad Abduh, Qasim Amin, Khayr al-Din al-Tunisi,
and Tahir al-Haddad, all of whom had criticised an unmitigated application of
traditional interpretations of the Shari 'ah that suppressed the rights of women. These liberal Islamic thinkers had particularly pleaded the humane spirit of the Shari 'ah to advocate for in both family female life. between the the and male and societal equality Abduh in his Qur'anic exegesis "Tafsir al-Mandr",
Muhammad
Qasim Amin in his "The Liberation of
Women" published in 1899 and his "The New Woman" published in 1900, and Tahir alHaddäd in his "Our Women in Shar? 'ah and Society" published in 1930 had all advocated in Shari 'ah interpretations freedoms that the the a manner of enhances moderate and more Tahir The lot Muslim from the work of al-Haddad women. attracted a of criticism of rights led his being denounced to heretic which subsequently sector, as a and conservative 318 in Zaytuna University Tunisia. from his teaching position at dismissed One of the radical reforms in the 1956 Code was the formal prohibition and 319The Code also reformed the law of divorce by divesting the criminalisation of polygyny. husband of the right of unilateral divorce (taläq) and making it possible for either of the 320 divorce before Courts. In the same year the shari'ah courts were initiate the to a couple into jurisdiction that the their Thus merged was of secular civil and courts. apart abolished from reforming the law, the formal interpretation and application of Islamic law was from Islamic judges the the traditional (Qädis) in control of completely and placed removed has observed that President Bourguiba saw himself as an Islamic Moore institutions. secular his Abduh321, like Muhammad in deprive the to the traditional and approach of was reformer Islamic scholars ('ulema ) of any control in the legal and political institutions. He personally, fully on radical reforms of traditional Islamic law. State tool the embarked power, of using The reformatory drive by President Bourguiba however went further than those advocated by Muhammad Abduh and others. It encroached unto the actual areas of Islamic mode of In 1960 by ('ibddät). State the to suspend one of the main was an made attempt worship 318See Hourani, A., Arabic Thought in the Liberal Age: 1798-1939 (1967); and Leites, J., "Modernist Jurisprudence as a Vehicle for Gender Role Reform in the Islamic World" (1991) 22 Columbia Human Rights Law Review 251 at 290-313. See P., "Finding Common Ground: Islamic Values and Gender Equity in Tunisia's Reformed Personal Status Law", Kelly, also (ed), Muslim Laws Special Dossier: Shifting Under Boundaries in Marriage and Divorce in Muslim Living Women in Communities (1996) p. 75 at 80.
319SeeArt. 18 of the Tunisian Code of PersonalStatus(1956). 320SeeArticles 30 and 31 ibid.
321Moore, C. H., Tunisia Since Independence: the Dynamics of One Party Government (1965) pp. 48-60.
320
interpretation formulated faith by Islamic President Bourguiba that through the an of pillars one-month fast of Ramadan should be suspended to foster the State's 322The President openly defied the Ramadan fast development. and called upon all economic Tunisians to do the same. He argued that his interpretation did not contradict Islamic
the obligatory
interpretation, it "progressive" but that a analogising that development of the was teachings demanded that the Ramadan the compelling suspension was a necessity economy of county's fast. The Tunisian Muslims protested against that policy and the president's order was in following Further were made attempts years, which also met with criticised. strongly According Magnuson, from Muslim to "reform" the the populace. attempted of opposition by Bourguiba "social Islam in total that the 1960s was so of observers aspect every 323 have de-Islamized Tunisia The entered a post-Islamic might or whether age". questioned Islamists thus saw Bourguiba's reforms as an attempt to undermine Islam. Explaining some Islamist issues to the in the that Tunisia the contributed emergence of movement against of the State's policy of Islamic reforms, Ghannouchi reiterated that: In 1957, once in power, he (Bourguiba) prohibited the use of the hab and once her in in Later, 1981, a law was passed tore veil public. a woman and uncovered forbidding women employed in government offices or those entering universities and In 1957, he forbade polygamy.. In 1960, Bourguiba colleges to wear the hab. . prohibited fasting in Ramadan, alleging that it was harmful to the country's economy... In 1974 he stated that the Qur'an was self-contradictory and ridiculed the miracles of the Prophet Moses... 9024
of
Encroachment by the State upon Islamic acts of worship (ibädät), particularly to a point it, the Islamic law an obligatory aspect of contradicts principles of strangulating and is not
how liberal one tries to be. Such interpretations go to the other extreme no matter sustainable, faith Islamic justifiable. the the therefore Such main core of and undermine not can and State freedom the by the as violation of could qualify a right of of religion and beliefs. action The traditionalists do cite such examples against the arguments for Islamic liberalism stating is limit dangerous is difficult the it endeavour of which very a that
if not impossible to
delineate. The fact is that there is hardly any need, as pointed out in Chapter three of this jurisprudence for the or re-interpretation change of any on the acts of Islamic worship thesis, (`ibäddt). Those are settled aspects of Islamic law that are not affected by either change in time or place.
322Seee.g. Entelis, supra, note 299 above,p. 237. 323Magnuson, D.K., "Islamic Reform in ContemporaryTunisia", in Zartman, I.W., (Ed.) ThePolitical Economy of Reform (1991) pp. 169-170. 324Ghannouchi, R., Interview in Arabia: TheIslamic World Review, April 1985.
321
The Tunisian Personal Status Code has been amended several times to accommodate 325 Tunisia has Code the in to gender. referred of and the respect of equality more reforms integrate fully into it taken the to the to women of steps era as one amendments subsequent 326 in human has Tunisia's human to the international commitment country. rights rights of 327 function by State. CEDAW in The the been public every almost emphasised also Committee thus described Tunisia "as a shining example for other (Muslim) countries, 328 interpretation Islam". The Committee because of its progressive and programmative of however went on to raise questions on issues such as prostitution, prohibition of night work for women, abortion, inter-faith marriages and non-recognition of free unions. Most of these issues touch on basic and sensitive Islamic religious and cultural values. In ratifying the Women's Convention, Tunisia had entered a general declaration stating that: "The Tunisian Government declares that it shall not take any organizational or legislative decision in conformity with the requirements of this Convention where 1 decision the provisions of with chapter conflict of the Tunisian would such Constitution. "
Bearing in mind that Article I which provides that Islam is the religion of the State is declaration Constitution, Tunisian inter 1 the Chapter the perhaps was, alia, to of part of liberal Islam, despite State's fact to there the that the approach very were some social express identity be based Islamic the that the family of people should on values still protected. and The country's reservation to Article 16 paragraphs (c), (d), (fl, (g) and (h) of the Women's Convention also goes to the same effect. Policies that may promote or encourage practices the abortion, sexual relationships outside marriage and prostitution, general as such family institutions Islamic the the marriage of and will certainly conflict with of undermining in identity Muslim While the might create people and problems of societies. and culture international human in Muslim States to the of guarantee ensure rights effort positive every ideals Islamic Islamic be be the preserving sense social of of morality need encouraged, must in is fear Muslim intended This the to remove necessary any world, of well. an respected as destruction of cherished Islamic moral values through the promotion of international human rights.
325Seegenerally Kelly, (1996) supra, note 318 above,and Mahmood, T.,(1995) supra, note 297 above,pp.42-45. 326SeeUN Doc CEDAW/C/TUN/1-2. 327See Amnesty International, Tunisia: Rhetoric versus Reality, The Failure of a Human Rights Bureaucracy (1994). 328UN Doc. A/50/38, Par. 222.
322
Islamic Criminal Justice Islamic criminal law is not applied in Tunisia, thus there is no question of Islamic international human State's in law the rights affecting obligations any provisions criminal influence law is Islamic in law is It that the any of reflected. personal status only of way.
General Representations on Human Rights Although Tunisia, as eulogised by the CEDAW Committee, appears to "come close to Islam human between becoming liberal harmonious and rights and a relationship achieving a its liberal has been free it being approach one"329, not of criticism a secular and state without in fact has been the cause of opposition from both the political Islamists and the traditional `ulema' who accused the ruling authority of the secularisation of Islam. This gave rise to Islamist opposition in the State against what was considered as a violation of the fundamental leader The Muslim Tunisian Tunisian Islamic the the exiled of proscribed populace. of rights Movement, Rashid Ghannouchi, stated in his book "Civil Liberties in the Islamic State" that: "The issues of civil liberties in the Islamic State became of greatest interest to me foreign Tunisian dominance due Islamic Movement the the to of culture, a when, basic from principles of Islam to address the wider propagation of mere changed , issue of the needs of Tunisian society..., the highest of which was and still is the issue of freedoms33°
This created many confrontations between the Islamists and the ruling authority leading to the proscription of the main Islamist opposition, the "Islamic Tendency Movement" later 331 its in forcing leaders into 1989 Party" "Renaissance the and exile. The conflict dimension Lawyers Tunisia
between the Islamists and the ruling
between Islamic law and international Committee
for Human Rights (LCHR)
since (1989) can be traced directly
Islamist the and political government ruling Islamist opposition maintenance
as Islamic extremists
authority
has created another
human rights in Tunisia. "(t)he worsening
to the deterioration
According
to the
human rights situation
in
of relationship"
between the
332The opposition. ruling authority
considers the
and "fundamentalists"
of a free State as enshrined in the Tunisian
who are both a threat to the
Constitution
and inhibitors
to the
'Z' Dalacoura, K., Islam,LiberalismandHumanRights(1998)p.151.
33°Ghannouchi, R., Huriyät al- 'ämah fi al-Dawlah al-Islämiyyah (1993) p. 17. "'See generally Hamdi, M. E., An Analysis of the History and Discourse of the Tunisian Islamic Movement, Al-Nahda (1996) PhD Dissertation, SOAS, University of London.
323
in international human State. This forced the threat the rights alleged of enhancement its to retract plans towards a pluralist political governance when members and government in Islamist the the Tunisian Assembly won some considerable opposition seats allies of "in The LCHR determination 1989. thus that the to observed single-minded of elections liquidate the Islamist threat to the governments monopoly on power (the) respect for human "333 in has declined. Tunisia rights
This confronts us again with the question of whether Islamism is so inherently inimical to international human rights that it must always be excluded from government.
From the
in human law in Islamic Chapter four theory the of rights given and practice of on analyses this thesis, it is clear that neither Islamic law nor Islamic governance is inherently inimical to human rights values. The problem has two dimensions. On one hand, there are regimes that in legitimacy during Islamism to of acquire or remain as a vehicle power periods utilise only in for the political status quo of a Muslim State. Such regimes change pressure of compelling usually manipulate Islamic law for their own purposes. They cling to power through harsh interpretations law intimidates hard-line the that the populace and the and application of and hand, On the the stereotyped opinion about Islamic fundamentalism always other opposition. in in dispensation defensive Islamists the the or whether out of government political on puts distrust States. lead This Muslim that to governmental or creates suspicion and modern of inhibit human that rights guarantees. activities oppositional The moderate and co-operative approach to human rights principles that is gradually in in different forms State the practice of almost all modem Muslim States manifesting indicate the possibility of achieving the enforcement of international human rights law within the application
of Islamic
law through
understanding
and co-operation
rather than
further important however depends This factors, two on one on the part of the confrontation. in States Muslim and the other on the part of the international community. authorities ruling The first factor is that the ruling authorities in Muslim States must accept the need to shift from strict and hard-line to more moderate interpretations and application of the Shari `ah, on the basis that the Shari `ah was not revealed to cause distress or hardship but as mercy and 334 is interesting humanity. It in for to that note arguing their cause internationally, most ease Islamist groups do appeal today to the obligation of States to respect their own political and indicates liberties. This belief in international human rights principles, which their civil 332Lawyers Committee on Human Rights, Promised Unfulfilled: Human Rights in Tunisia Since 1987 (1993)p. 4. 333ibid. at 13. 334See e.g. Qur'an 20: 1- "We have not sent down the Qur'an unto you to cause you distress" ; and Q21: 107- "We sent thee not, but as a mercy to all creatures. "
324
far Islamist to those how themselves back the are prepared respect groups at mirrors ideas leader the the Tunisia that the In of the of exiled observes one of case principles. Islamist Renaissance Party of Tunisia, as expressed in his Civil Liberties in the Islamic State, demonstrate to a large extent, a comparatively liberal and moderate interpretation of Islamic 335 human He strongly international law in a manner that accommodates rights principles. but the the to freedom on need preserve also emphasises the equality and values of advocates Tunisian Islamic identity and religious values, such as not intruding upon the acts of Islamic is international factor brings that the This the which second up worship and moral norms. States, Muslim that the every not expecting with sincerely community must co-operate in liberal discarded have be the to approach traditional Islamic value or religious norm would in develop is law. There to understanding on many aspects a cross-cultural need to Islamic law Islamic human international between and with respect especially rights the relationship to justifiable religious and traditional norms and values.
REPUBLIC
OF TURKEY
Turkey is a predominantly Muslim State with a legendary Islamic heritage. It was the last capital of the Ottoman Empire and seat of the Islamic Caliphate until 3`d March 1924 institution formally Assembly National the Grand the Turkish abolished of the when 336 Article 2 of the Turkish independence Constitution, which provided that "The Caliphate. ideology in "Kemalism" deleted 1928 is State Islam" the Turkish the and of was religion of (named after the first Turkish president and leader Kemal Ataturk) was adopted and Nationalism Secularism. Turkey based in 1937 the and of principles on constitutionalised in State formal fully first the Muslim world. The preamble of its became the secular thus and by "as the there Constitution that: principle of secularism, required also provides current feelings in interference the be religious state affairs and sacred whatsoever of no shall 337Although the Kemalist ideology advocated a complete separation of religion and politics". the State, yet Islam was not left to exist autonomously as a religion outside the State's department Islamic State The through a of religious affairs still controlled practices control. established within
the general administration
to ensure that Islam was practised "in
I" Seegenerally, Ghannouchi,R., (1993) supra, note 330 above.
336See Toynbee, Survey of International Affairs, (1938 ) pp. 572-575. See also Berkes, N., The Development of Secularism in Turkey (1998) for the history of the evolution of Turkey from an Islamic State to a secular one.
117See5`hPreambularParagraphof the 1982Constitution of Republic of Turkey (As amended).
325
338 in State. As the the of secularism" principles observed by Professor accordance with Ozbudun, "(i)t was feared that total non-interference between religion and the state would, in fact, result in the interference of religion in government affairs, since Islam is not only a ideology law, faith but of a social and a system political and a total way of of also system and thus had the potential to "inevitably 339 by State. the uncontrolled life"
retain its hold over the society" if left
Between independence in 1923 and 1938 there were enormous secular reforms to the 340 State. institutions The Shari `ah courts and every legal, educational and cultural of the in State hitherto in law the Islamic totally that this period. existed were abolished of aspect Thus despite its long Islamic heritage and culture, there is no longer any formal application does law in in Islamic intervene law Turkey. law State therefore Islamic not anyway as of human international the rights obligations. Nicole and Hugh Pope have country's with however observed that: "(while the urban elite of the early republic quickly adopted Atatürk's brand of secularism, they were relatively few in numbers and secularism was not uniformly its Rural the the throughout country. areas on whole escaped strictures. Even applied in the cities, it was only successfully imposed in the period of the iron-fisted oneparty regime. As soon as Turkey converted to a multi-party system, religion became 341 a political tool"
Due to its total non-application of Islamic law as State law, Turkey does not make its law in international human Islamic Conversely to rights reports or statements. reference however, the enforcement of Kemalist
secularism in Turkey has raised human rights
freedom in thought, to of conscience and right religion relation to Islamic on questions Ataturk laws During the era, some principal reform were enacted embodying the norms. laws State. These inter the that, of were policies alia, established secular education secular 342introduced the wearing of the European top-hat and strictly regulated religious education, 343 344 Fez Religious Brotherhoods, the the turban, the wearing of and abolished and outlawed 345 leaving legal religious marriages without any effect, recognised only civil marriages
338SeeArt. 136, Constitution of the Republic of Turkey.
339Quoted in Ansay, T., and Wallace, D., (Eds. ) Introduction to Turkish Law (1996) p. 3 1. 340See e.g. Berkes, N., supra, note 336 above, p. 461 if.
341Pope,N., and Pope,H., Turkey Unveiled: Ataturk and After (1997) p.318. 342Act No. 430 of 3 March 1340(1924) on the Unification of the EducationalSystem. 343Act No. 671 of 25 November 1341 (1925) on the Wearing of Hats. 344Act No. 677 of 30 November 1341 (1925) on the Closure of Dervish Covenantsand Tombs, the Abolition of the Office of Keeper of Tombs and the Abolition and Prohibition of Certain Titles. 34sThe Principle of civil marriageadoptedwith the Turkish Civil Code No. 743 of 17 February 1926and Article 110 of the Code.
326
prohibited
346 in Latin Arabic the use of all public affairs and adopted the script, script
abolished the use of certain religious titles347 and prohibited the wearing of certain religious 348Article 174 of the current Turkish constitution still protects these reform laws by garments. interpreted be Constitution to render the the that shall construed or no provision of providing is is ICCPR but ICESCR Turkey the laws to either yet ratify or a unconstitutional. reform State Party to the European Convention on Human Rights and at least twenty-eight other 349 human international treaties relating to rights.
Constitutional Rights Part Two of the Turkish Constitution provides for Fundamental Rights and Duties, 350 of social, economic political, and cultural civil, rights. of which cover an extensive range 351 freedom is law in Islamic the to right of religion and conscience, relation to significance 352 Freedom of Expression and Dissemination of Opinion, Freedom of Thought and 354 353 laws The Association. Freedom Thought reform earlier stated above are also of and , Constitution. In by Turkish Muslims to the 174 by Article the relation regulation of protected Islamic in lives the norms, prohibition of wearing of certain their with accordance personal of legal titles, the the and religious recognition of only abolition of certain religious garments, 346Act No. 1288 of 20 May 1928 of the Adoption of International Numerals and Act No. 1353 of 1 November 1928 on the Adoption and Application of the Turkish Alphabet. 347Act No. 2590 of 26 November 1934 on the Abolition of Titles and Appellations such as Efendi, Bey or Pasa. 348Act. No. 2596 of 3 December 1934 on the prohibition of the Wearing of Certain Garments. 349Slavery Convention (1926); Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (1956); Genocide Convention (1948); Convention Relating to the Status of Refugees (1951); Protocol Relating to the Status of Refugees (1967); Convention of Political Rights of Women (1952); Convention on the Elimination of All Kinds of Discrimination Against Women (1979); Convention Against Torture and other Cruel, Inhuman Child (1989); 1949 Geneva Convention I; Convention Rights (1984); Punishment the the Treatment Degrading of of or or 1949 Geneva Convention II; 1949 Geneva Convention III; 1949 Geneva Convention IV; European Social Charter (1961); European Code of Social Security (1964); European Convention of Social Security (1972); Supplementary Agreement for (1972); Social Security European Convention on the Legal Status of Convention European Application the on the of Migrant Workers (1977); European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987); ILO Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize (1948); ILO Convention (No. 98) Concerning the Application of the Principles of the Right to Organize and Bargain Collectively (1949); ILO convention (No. 100) Concerning Equal Remuneration for Men and Women workers for Work of Equal Value (1951); ILO Convention (No. 102) Concerning Minimum Standard of Social Security (1952); ILO Convention (No. 105) Concerning the Abolition of Forced Labour (1957); ILO Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation (1958); ILO Convention (No. 122) Concerning Employment Policy (1964); ILO Convention (No. 135) Concerning Protections and Facilities to be Afforded to Workers' Representatives in the Undertaking (1971); ILO Convention (No. 151) Concerning Protection of the Right to Organize and Procedures for Determining Condition of Employment in the Public Service (1987). See UN Human Rights Treaty Website at: http"//www. unhchr. ch/html/intlinst. htni [26/2/2001] and ILO Conventions Website htm ilo. 1567/public/english/docs/convdisp. [26/2/2001] //ilolex. International http: Humanitarian Law Treaties ch: and at: Website at: http: //www. icrc. org/ihl [26/2/2001]. 350See Articles 12-74 of the 1982 Turkish Constitution. 35' Art. 24 of the 1982 Turkish Constitution. 352Art. 25 ibid. 353Art. 26 ibid. 354Art. 33 ibid.
327
laws be freedom their the can violative of religious reform marriages under guaranteed civil by the Turkish Constitution. In the sphere of family law only civil marriages performed by authorised marriage 355 Turkish legally thus religious marriages civil code, recognised under the officers are have legal law in Islamic is It no effect with whatsoever. accordance only after conducted the conduct of a civil marriage that a religious marriage may be conducted.
Both the
liable that to prosecution under the provision are who contravene and couple officer religious 356 Code. This will be violative of right to religious freedom under international Penal the human rights law.
Equality and Non-discrimination Article 10 of the Turkish Constitution provides that: "All individuals are equal without discrimination any
before the law, irrespective of language, race, colour, sex, political
belief, No sect, or any such religion and considerations. philosophical privilege shall opinion, be granted to any individual,
family,
group or class. State organs and administrative
in before in law the the principle of equality with act compliance shall all their authorities proceedings". In relation to Islamic law, prohibition of the head-veil has been used as an instrument of discrimination
against Muslim
women in government institutions
and establishments in
Turkey. Muslim female teachers and students are prohibited from using the veil in public female government employees and their families 357 functions Muslim female the wearing veil. public students are reported to attend cannot have been expelled or denied admission into colleges and higher institutions of learning for institutions
of learning. Also Muslim
358 head Islamic discard There are also their to veils worn on religious grounds. refusing 359 in headgear lawyers Islamic The veil is considered by "strict rules against court". wearing the State as an emotive symbol of Islam that contradicts the secular nature of Turkey. In the 2000 Report on Turkey by the Special Rapporteur on Elimination of all Forms of Intolerance it is based Religion Belief, that: Discrimination on or stated and "The (Turkish) Council of State, in response to a complaint brought by a medical decision her for the of university suspending against a student one month for wearing assSee Art. 151 of the Civil Code. 356See Articles 108 and 237 of the Criminal Code. 357See Berkes, N., supra, note 336 above, p. 474. ass ibid.
359Pope,N., and Pope,H., (1997) supra, note 341 above,p.328.
328
the veil in class, found that the wearing of the veil symbolised a vision of the world is Republic the freedoms the on which principles of women and contrary to the founded" 360
The report further stated that a parliamentary attempt in 1988 "to amend the law on 361 The for religious reasons" was aborted. higher education to allow wearing of the veil Constitutional
Court is reported to have set aside the amendment at the request of the
heads their female to "to on university cover that students President on grounds allow because the the the of nation and unity security public affect grounds might adversely it) (and that belongs to was contrary to the which religion headscarf or turban shows who 362 incompatible (and) law, before beliefs the with secularism". that equal are all principle Muslim discrimination institutionalised led has women who wear the to against This leads indirectly below. It Women's to is further also rights headscarf as under elaborated denied higher for that fundamental to the women education on education right violation of ground. Also on equality and non-discrimination, the Committee of Independent Experts on the Turkish Civil Code the has Charter that Social articles of give certain European observed between husband to the thus of equality principle spouses the to contrary and power greater 363 Turkish Civil Code Article 152(1) the Committee to The Charter. of referred under the family; Article 152(2) is head husband that the the the that which provides of which provides Article 156 dwelling-place; that the the husband which provides couple's choose shall the husband may deprive the wife of her legal authority to represent the couple if she abuses that husband have the 263 that Article should sole parental provides which and authority; however in its had its Turkey "draft dispute that to if noted report use. as arose any authority 364 legislation had been drawn up with a view to revoking these articles".
Women's Rights During consideration of Turkey's CEDAW report in 1997, the country's representative in Turkey", and that "women had "development the agenda a gender-sensitive of reported 36°SeeUN. Doc. A/55/280/Add. I of 11 August 2000, Par.19.
361The intended amendment read as follows: "It is obligatory to have contemporary appearance and dress in higher laboratories, clinics and corridors. There is freedom however, for women to institutions, their classrooms, educational headscarf hair ". See UN. Doc. A/55/280/Add. I of 11 August belief turban due the a or with and to neck religious cover, 2000, Par. 20. 362 ibid.
363See European Social Charter, Committee of Independent Experts Conclusions, XIII-3, p. 384. 364ibid.
329
365 in She also society. become visible and had been expanding their sphere of action" Government facing the to task "(t)he was now urgent that and arduous most observed basic their the demands enhancement of citizenship the to particularly women, of respond rights within a secular social order".
366
in in the The question of the veil always comes up examination of women's rights 367 it, in forced States Muslim to in While States. are wear women Muslim some non-secular "secular it is it to the because discard forced social to as contrary seen Turkey women are 368 is the From State. seen as religious symbol often a veil the perspective a secular of order" in the from that derives This religious scriptures earlier allusions of women's subjugation. 369 On inferiority to the by their men. and subservience the symbolises women veil use of in the it is to subjugation or context of subservience symbol there as a reference no contrary, 370 Sunnah. Qur'an the both the and of Under Islamic law the veil is an aspect of the rule on Islamic modesty in dressing, which is Since both outside marriage a criminal relationships sexual to women. and men applies it. In that temptations to law the law, to Islamic of the avenues close attempts offence under both bodies Shari'ah that men's and of women's parts certain obvious provides regard the in Muslim invitations the in to be abuse to society. sexual prevent public exposed must not from fact their navel that is legal the expose any not part men must While there consensus on 371 divided. fi'1 While Sha the to in knee the are women opinion with regards public, to their hold jurisprudence that their Islamic Hanball women must cover up whole of the schools and jurisprudence Hanafi Maliki from the and schools of glare, public person without exception 372 feet Many hands the to the face, the to the up ankles. and the wrists up exempt jurists have disagreed with the view on complete veiling Muslim thinkers and contemporary 373Rahman has argued that the Qur'anic provision on lowering of gaze374would of women.
I's SeeConcluding Observationof the CEDAW on Turkey (1997) UN Doc. A/52/38/Rev.1, of 23/01/97, Par.154. 366 ibid.
367See e.g. Ali, S.S., "Women's Rights in Islam: Towards a Theoretical Framework", (1997-98) Yearbook of Islamic and Middle Eastern Law, Vol. 4., p. 117 at 143-146.; and Jansen, J.G., The Dual Nature of Islamic Fundamentalism (1997) p138-157. d8 Both of which can amount to violation of international human rights law. See e.g. the Human Right Committee's GC 28, Par. 13.
369Seee.g. I Corinthians 11: 5-10. Seealso Durant, W., Storyof Civilization, (1939), Vol. Ill. pp.596-597 370SeeQ24:31 and Q33:59371Seee.g. All, S.S., supra, note 367 above,and referencescited therein in respectof the differences of opinion with regards in Islam. of women the veiling to 372See e.g. Al-Zuhayli, W., al-Fiqh al-IslamI wa-Adillatuh (Arabic) (1997) Vol. 1, and pp. 743-754. See also Stowasser, B. F., Women in the Qur'an, Traditions, and Interpretation (1994) pp. 93-94. 373See e.g. Rahman, F., Status of Women in the Qur'an in Nashat., G., (ed. ) Women and Revolution in Iran (1983). See also Court in Ansar Burney. v. Federation of Pakistan (1983) PLD (FSC) 73 at Federal Shariat Pakistan the judgement of the , 75ff.
374Seee.g. Q24:30-31.
330
375 if least for (at to been have up completely. were required cover women men) necessary not 76 In practice, majority of Muslim women follow the view of the second two schools. It is in relation to this religious obligation of modesty that Muslim women use the headto their This women are able perform societal and men whereby atmosphere an allows veil. functions without invoking their sexual tempers. Women who dress modestly and cover their hair are respected and honoured in most Muslim societies. They are considered to be free head-veil does The to women. not prevent from contributory negligence sexual abuses on in Muslim heights they from capable of reaching many are achieving whatever women in "Contrary have to the Pope that: Hugh Nicole today. perceptions observed and societies of West, these women, who often wear a long Islamic coat as well as a headscarf, are not Some tradition. to are well educated professional submitting peasants uneducated always 377 is Wearing the to have religion". veil more embrace choice made a conscious women, who is This Muslim carry out women willingly. evidenced many which obligation, religious a of by the fact that while the State strongly discourages the use of the head-veil in Turkey most it in daily institutions their obligation wear as a religious still women outside government lives. Turkish female students have demonstrated against the prohibition of the head-veil in 378 in Muslim learning their institutions religious rights. women of higher as a violation of Western non-Muslim States also use the head-veil willingly as a religious obligation. The controversy about the Muslim woman's veil in Turkey reached a summit on May 2, (a Merve Kavakci Muslim lady), Turkish Parliament, Member the of 1999 when an elected head-veil. in This for the wearing a raised mayhem ceremony swearing-in entered parliament State the She to the principle of ordered and secular of violating accused was the assembly. lady do The her to the the refused either, assembly. pleading or vacate veil either remove her religious beliefs. The parliament ended in a row. in dress to with accordance right While Kavakci was seen by the State as an "agent provocateur working for radical
in democracy, herself test tolerance and Kavakci a simple setting saw Islamic states", State had failed. her, the to freedom of expression, which according
This quickly led to
judicial moves by the country's chief prosecutor to close down the Virtue Party on whose Kavakci that the Miss trying to the was elected on grounds party was overthrow platform State by supporting her. The veil saga led to the revocation of Constitution the of secular 375SeeRahman,F., (1983) supra, note 373 above, at 40. 376SeeChapter6, pp. 115-16. 377Pope, N., and Pope,H., (1997) supra, note 341 above,p.328. 378Media reportsindicate that someMuslim female studentshave been chargedin Turkish courts with the crime of intending to overthrow the secularnature of the Statefor demonstratingagainstthe ban on the useof the veil in higher institutions.
331
Miss Kavakci's Turkish citizenship within days, on grounds that she had taken USA dual had informing Kavakci been Turkish forced the to authorities. earlier without citizenship Ankara University her her and migrated at with course parents to study medical abandon had in because her hair USA to the then as a she also refused uncover science computer international human This raises other of citizenship student. revocation rights issues medical initial issue from Muslim's headthe to to the the of a right apart wear citizenship right on Christian in that of a nun as well, a secular State. The and perhaps veil on religious grounds, Kavakci veil saga has been described as "a serious breach of human rights, representing an freedom s379 Turkey fundamental the thus represents an of religion. right of on attack international human State Muslim of where principles rights are pleaded against a of example State practices that violates Islamic religious rights. It also dispels any proposition that tends to suggest the application of Islamic law as the major factor for the violation of international human rights in Muslim States. Of relevance also in the discussion of women's rights in Turkey is the practice of forced "virginity
examinations" carried out on women. The examination is conducted to determine
that the virginity of a female is intact, often to "defend" the family's honour. It is a traditional female that the virginity presumption out on carried practice
is a legitimate interest of the
family, the community and, ultimately, the State, and is thus not only deemed justifiable, but individual legitimately bodily integrity, the to overriding rights of women as seen also 380 CEDAW before law. The Committee has "emphasized the that such equality and privacy discriminatory degrading, by were and unsafe and constituted practices a violation coercive 381 integrity, bodily dignity the Turkey being a person and of women" . state authorities of State with predominant Muslim population, it must be emphasised that this practice is has no support whatsoever under Islamic law. and cultural absolutely
The Shari `ah
female's integrity the privacy, of modesty protection and on actually makes such provisions law. Its Islamic is Islamic law by to the fact non-relation under evidenced unlawful practice that such practice does not occur in other Muslim States that actually implement Islamic law.
379SeeUN. Doc. A/55/280/Add.l of 11 August 2000, Par. 67.
380See Human Rights Watch, "Forced Virginity Exams in Turkey" in The Human Rights Watch Global Report on Women's Human Rights (1995) pp. 418-444 particularly 419. See also Monshipouri, M., (1998) supra note 97 above, pp. 128-9.
381SeeCEDAW Concluding Observationon Turkey (1997), UN. Doc. A/52/38/Rev. 1, Par.178.
332
Islamic Criminal Justice
Similar to Tunisia, Islamic criminal law is not also applied in Turkey. Thus there is no law international State's Islamic human rights the affecting criminal provisions of question obligations in any way.
General Representations on Human Rights Despite criticisms against its human rights practice, Turkey continues to affirm its international human At fifty-sixth the to the rights regime. commitment
session of the UN
Commission on Human Rights in April 2000, the Turkish Minister in charge of human rights in "shortcomings human the the that area of nation's rights were, regrettably, not agreed he described "a blamed ideological He the terror" on what as situation wave of negligible". faced by State. He however "ethnic terrorism the objectives" with separatist reiterated and the nation's commitment to international human rights, listing out a number of reforms by the government towards the improvement of human rights in the State, which includes that: "... only civilian judges currently sat on the State Security courts; a repentance law had granted amnesty and reduced sentences of members of terrorist groups; amendments to the Penal Code had redefined and increased the penalties for torture, ill-treatment and abuse of power by public officials - the definition of torture had been brought into line with the United Nations and European conventions; legislation had been passed to postpone sentences and trials relating to crimes committed through the media - to date 22 writers and reporters had been released from prison; new legislation made it easier to prosecute public officials for torture and illtreatment; stricter guidelines on detention and interrogation had been introduced; human rights education had been intensified, particularly in the context of the United Nations Decade for Human Rights Education; and it had been made easier for civil servants to engage in trade union activity. " He further stated that: "Work was continuing on reforms to the Civil Code, the Penal Code, the Code of Penal Procedure, the Code of Execution of Sentences and the Ombudsman Bill. s082
He concluded that "Turkey would soon be signing the international Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights",383 both of which it did sign on 15 August 2000 but is yet to ratify..
382See Summary Record of the 0 Meeting at the 56`h Session of the Commission on Human Rights, UN Doc. E/CN. 4/2000/SR. 4 of 4 April 2000. Par. 39-49.
383ibid., Par. 47.
333
CONCLUDING
REMARKS
An examination of other Muslim States will reveal, mutatis mutandis, State practices in fall human in international the that this within rights case studies conducted respect of ideals humane Shari `ah as expatiated in the first Theoretically, the the spirit of and chapter. human best be that thesis this an expectation creates rights should of second parts and is human in This Muslim the not regrettably so, and world. rights are violated in respected Muslim States as much as they are violated in non-Muslim States. International human rights law is seen to be violated both where there is a hard-line traditional application of Islamic law or the enforcement of hard-line secularist agendas against Islamic norms and rights. There is therefore a need to find a balance between these two positions in the relationship between Islamic law and international human rights law in the Muslim world. It is obvious that there is a common phenomenon of consciousness in Muslim States of ideals, international human rights especially on the part of those the appealing nature of liberty freedom, Muslim States to the and of equality. modern concepts can thus not exposed feign indifference
but are rather advancing cautiously
and with
different
degrees of
their interpretation between in bridging the that gap exists of the Shari `ah and the moderation international human While State the their obligations. rights of practice of Muslim realisation States concedes generally to the universality
of human rights, they have persistently
Islamic to the sustain morals and values within their relativist argument cultural advanced human rights practice. To achieve greater harmony, the need for Muslim States to depart from hard-line interpretations of the Shari `ah has been stressed in this thesis. However, State first four Muslim the that of especially practice,
States examined in this chapter, also
how in Muslim States their application of Islamic law, that, no matter moderate are confirms differences some areas of cultural vis-ä-vis current international human there will still remain be differences justified Those that areas of can reasonably rights practice.
on grounds of
for those this thesis the morality are which proposes and order adoption of the margin public in doctrine by bodies UN European human rights the treaty the emulation of of appreciation This will regime.
allow for an international evaluation and control of the justifications
differences inclusive for the cultural and promote an universalism that will enrich advanced international human rights practice universally. As has been argued in the earlier parts of this thesis, the legitimising
effect of the
Shari `ah and its ultimate objective of ensuring both the temporal and spiritual well being of individuals make it a very important vehicle for realising the ideals of international human
334
doctrine Adopting in law Muslim the the margin of appreciation world. will provide rights leeway for the healthy interaction between Islamic law and international human rights law in the Muslim
world. It must be noted however that there is yet to emerge a unified
interpretation or application of Islamic law that facilitates a common Islamic human rights in Islamic States. Thus Muslim Muslim the the with resurgence world and among evaluation by in form law Islamic or another modern Muslim States, an important the adoption of one is Islamic human faces the them that of a common establishment rights also challenge bridging towards the gap that a reference point as mechanism standard and an enforcement law international between Islamic the the of and enforcement application of presently exists human rights law in the Muslim world. The concluding chapter of this thesis will address and in for international that the challenge co-operation meeting with means possible recommend human rights regime of the UN.
335
CHAPTER
9
Conclusion This research has examined the question whether or not Islamic law and international human rights are compatible, and whether Muslim
States can comply with international
human rights law while they still adhere to Islamic law. We have exhaustively analysed and from both international the traditional to the on subject arguments salient an responded human rights and Islamic legal perspective. The substantive rights contained in the ICCPR Convention Women's have been the ICESCR of aspects well as some also examined as and in the light of Islamic law. The State practices of six Muslim States were also examined as findings The in the this of and recommendations research are summarised studies. case concluding chapter.
SUMMARY
OF FINDINGS
AND RECOMMENDATIONS
It has emerged from the analyses and arguments herein that there is certainly a human in law. Although Islamic have been by discourse the this manifestation of may eclipsed rights differences between the the two legal regimes, the traditional on of scope the emphasis impugns incompatibility in the theory and reveals the existence of a this research expositions large positive common ground between Islamic law and international human rights law. This does not however obscure their differences of scope and application, but rather establishes a differences for development basis the through the managing of complementary positive legal The between the two systems. analysis and argumentation of the methodologies theoretical and practical differences reveal that the differences are not totally irreconcilable. The important harmonising elements are demonstration of good faith, appreciation of human dignity, and the abandonment of prejudice between Islamic law and international human detailed The both ICCPR the examination of and the ICESCR in the light advocates. rights demonstrates harmonisation law the international Islamic possibility of constructive of of human rights norms with
Islamic
law.
The contentions between Islamic
law and
international human rights law arise mainly from points of interpretation, which are largely Consequently, the history" "end reconcilable. eliminative mutually and of approach to and
336
human international law has been herein law both Islamic interpretation rights and the of interpretation inclusive, is It and constructive method of evolutionary only an challenged. for human in best the the bring two the the enrichment of regimes rights of that will out Muslim world. Generally, the ideals of international human rights are very lofty and thus no nation can States Muslim Modern its indifferent be to are conscious of that and they today challenges. do
demonstrate acknowledgement
of
the importance
of
human
rights.
They
also
acknowledge the universality of human rights and their reports neither challenge the binding deny human their treaties international treaties obligations under ratified nor rights of nature by them. Their contention has mostly been about interpretation of international human rights human develop "(t)here to that rights concepts with reference current a need was norms and in the various religions, civilizations and cultures of the humanitarian the enshrined values to ' The question is therefore not simply an argument about Muslim States being bound world". 2 law, for they do not appear to dispute that. by the norms of international human rights interpretation is the universally applicable the of a of the Rather evolution about question The Muslim World is It not universality. universalism of a question ultimately norms. League reiterated after its international conference on human rights in Rome on February 28, in be "dialogue and civilizations all cultures that a manner that 2000 encouraged among 3 human The better Muslim thus toward of rights". the understanding world a way paves degrees human international coupled with varying rights of persistence generally affirms interpreting human rights norms. This reflects the strong link in legal Islamic traditions upon Islamic In legal their the the traditions Islamic civilisation as a whole. with examination of of impossibility Brierly David the legal the observed and world, of rejecting systems of major Islamic the legal tradition Islamic entire rejecting civilisation. Since a rejection without the Islamic the civilisation of
is not the goal of the international
human rights objective,
is importance for ideals legal Islamic tradition the the of utmost realising accommodation of in for human in human Muslim the international universalism achieving and rights rights of legitimising force in law Islamic the Through accommodation and of many mutuality world. Muslim States can be positively utilised for the enforcement of international human rights law in the Muslim world. I See Statement by the Deputy Minister for Foreign Affairs of Saudi Arabia at 56`h Session of UN Commission on Human Rights. UN Doc. E/CN. 4120000/SR. 30 of 26 April 2000. Par. 2. 2 See e.g. argument along that line in Mayer, E. A., Islam and Human Rights, Tradition and Politics (3`d Ed. 1999) p. 12. 3 See Rome Declaration on Human Rights in Islam. Saudi Embassy News Website at: http: //www. saudiembassy. net/press release/00 spa/02-28-Islam. html [6/03/2001].
SeeDavid, R., and Brierley, E.C. Major Legal Systemsin the World Today, (1985), p.482.
337
in be the Muslim world human international enhanced The scope of positively rights can Shari 'ah interpretations than the dynamic of rather and constructive through moderate, in is it. This interpretations hard-line so respect of women's particularly of through and static have We Islamic the punishments. shown criminal of application and rights, minority rights, juristic jurisprudence Islamic different classical views that and by reference to the schools of had importance the jurists Islamic of moderation and and scholars emphasised even the early international the today of realisation that enhance greatly can adopted constructive views is law. Muslim The Islamic dispensation the actually ummah of human rights norms within The description Qur'an, in balanced" the "justly moderations signifying a described as Covenants has human international the two legal the rights established Islamic of analysis in Shari 'ah light interpretations the the traditional for equally of of some reviewing need jurists from Islamic had the that earliest as even existed opinions moderate valid in The full for the them. in the of rights contained this realisation demonstrated research, interpretations of the Shari 'ah that do jurisprudence Islamic encourage actually rules of for Islam, the benevolent where reasoning such especially the of nature promote justice human being. social and well of needs interpretations commensurates with prevalent in instance, difficulties For that the is respect. This conclusion possible of not unmindful in before ESCR Committee the had inter Nasseri, Mr. Iran, alia, stated, representative of law falling Islamic the traditional to "it without short of apply easy 1993 that always not was " however "(t)he He Covenant. that in the to also added acceding commitments undertaken law Islamic to the Iran reconcile Republic endeavouring and was sincerely Islamic of ... 6 interpretational fact buttresses that This the Covenant". even where the provisions of demonstrated is as contended there and of rapprochement often possibility difficulties exist, both in it ICCPR ICESCR Egypt 1982 the Likewise, and ratified when in this research. Sharia". into Islamic "taking the the declaration provisions of consideration entered a general in in 1998, Egypt ICESCR initial its the 3 submitted stated respect report on In paragraph of follows: declaration the as said of "Egypt expressed a general reservation to the effect that account should be taken of the need to ensure that the Covenant was not incompatible with the provisions of the Islamic Shari'a. However, the practical implementation in Egypt of the provisions of from laws, 14 April 1982 date has Covenant, the to of country's not the as one between Islamic Shari 'a the incompatibility the provisions of and the any revealed I See Q2: 143. A Tradition of the Prophet also instructs Muslims as follows: "Beware of extremism in religion. People See have also generally, al-Qaradawi, Y., Islamic Awakening between such extremism". of as a result perished before you Rejection and Extremism (1990).
6 SeePar. 36 and 37 of SummaryRecord of the 8`hMeeting: Iran; E/C.12/1993/SR.8 of 20 December 1993.
338
forth set principles and rights application. "' (emphasis added).
out
in the Covenant and relating
to its field
of
The Egyptian representative before the ESCR Committee, Mr. Salama, had also pointed (in had Egypt) law Islamic interpretations "Enlightened and were permitted... of that:
in by delegation developments the the many to mentioned positive contributed actually 8 importance faith " This issues. the family and of good reflects fields, such as women's and international in to State the endeavouring realise authorities humanitarian will on part of law. Islamic Shari'ah their limits the application of the and human rights within of ample Conversely, there is similar need to depart from the exclusionist approach in the interpretations of the provisions of international human rights treaties. To encourage the in Muslim UN human international the the world, rights promotion and realisation of in for Islamic develop bodies must human treaty values consideration international rights in is Islamic law. This human international to interpretation norms relation rights of their doctrine issues the on moral the of appreciation relating through margin of adoption possible law Due Islamic family to the Islamic obvious relevance of to norms. ethical and especially in is Muslim human in international the there for world, a rights in the quest universalism in international law Islamic the highly inclusion for the experts on qualified of positive need "representation bodies the the human to international treaty reflect of rights of membership legal the the forms systems" of world on the principal different of and of civilization 9 Committees. This would boost the confidence of Muslim States and Islamic legalists in the international
human rights treaty bodies and lead to more positive inclination
towards
international Committees human the of relevant interpretations and general comments of States by Muslim the It not only of substantive ratification treaties. encourage will also rights for individual Optional Protocols but that treaties provide complaints human rights also human international the regime. rights within systems
With reference to the HRC for
instance, McGoldrick has rightly observed that: "The presence of experts from different legal systems can assist the HRC in its during 40. For the example, consideration of under article of reports consideration have HRC it Morocco the to of members who were conversant was useful report of in 31(2) States laws. The Islamic can give article provision parties the with be if disagreed least i10 that their even at understood will approach with... confidence 7 Initial State Party Report: Egypt; E/1990/5/Add. 38 of 30 June 1998.
e Summary Record of the 13`hMeeting: Egypt; E/C. 12/2000/SR.13 of 9 May 2000 and Par. 64 of Summary Record of the 2000. 1 I 8 May 12/2000/SR. E/C. Egypt; Meeting: of I1
9 See e.g. Art. 31(2) of the ICCPR and Art. 8 ICERD. 10McGoldrick, D., The Human Rights Committee: Its Role in the Development of the International Political Rights (1994) p. 55 n. 5.
Covenant on Civil and
339
Joseph, Schultz and Castan have however observed that "a Western representative bias half (HRC) from detected in the 1998 be to members with over of serving recent years, can 2000 coming from the United States, Canada, Australia, the United Kingdom, France, Italy, 11 Thus the need for the reflection of a more Germany Poland". Finland, Israel, and "equitable distribution of membership" not only of the HRC but of all the UN human rights 12 treaty bodies cannot be overemphasised. Based on the findings herein, this conclusion proposes a mutual approach for the dispensation Islamic in international human law Muslim the the within of rights of realisation jurists international human law Islamic Both rights and scholars need to adopt an and world. accommodative and complementary approach to achieve the noble objective of enhancing human dignity, fostering an ideal human community, ensuring justice, peace and the general well
being of all human beings, which are common aims of both the Shari `ah and
international human rights law. The objective must be towards combining the best in both impugns humanity. for This the demands that unilateral approach, proposal all which systems international human rights law depends only on between law Islamic harmonisation and the reforming
the Shari `ah to conform
totally
with
current
international
human rights
interpretations, some of which are considered by Muslims as insensitive to Islamic religious instance For that of unilateral approach, while answering one advocate viewpoints. moral and the question "How should international law respond to the incompatibility
of claims based on
Shari 'a with international human rights norms? ", submitted that: "international law norms it desirable for be Muslim be that and may compromised, scholars to explore not must interpretations Shari Islamic 'a be of sources which under can reconciled with alternative 13 in international human law". The difficulty of such unilateral demand developments rights is it is law Practically, Islamic obvious. quite synonymous with an attempt to clap with upon hand. one only The mutual and complementary approach proposes that in respect of Islamic law, the for harmonisation means necessary
are: (i) adopting an "enlightened
interpretations"
by Egyptian (ii) "sincere the representative above, and as observed a endeavour to approach, by Iranian have the We observed representative. as observed earlier that the reconcile"
Joseph, S., Schultz, J., and Castan, M., The International Covenant on Civil and Political rights, Cases, Materials, and Commentary (2000) p. 10. 12For example the balance of State Party membership of the European Court of Human Rights does make easier its search for an "European Consensus" in cases brought before it. Art. 20 of the European Convention provides that: "The Court judges High Contracting Parties ". to that the equal a of of number of consist shall 13Nanda, V. P., "Islam and International Human Rights Law: Selected Aspects" (1993) American Society of international Law Proceedings, p. 327 at 331.
340
Islamic
law doctrine of maslahah is very relevant for this purpose.
And in respect of
international human rights law the necessary means are: (i) accommodation of necessary in respect of Islamic ethical and moral values, (ii) appreciation that margin of appreciation human rights are not inherently non-achievable within the scope of Islamic law. We shall domestically, these of achieving practical means regionally and some salient now consider universally.
Domestic Means for Enhancing Human Rights in the Muslim World 1. Human Rights Education It is submitted that the greatest debilitating factor against the enhancement of human is ignorance human lack in Muslim human today the about rights world and of rights rights in law Islamic While, this thesis, substantially recognises the duty of the as shown education. State to promote and protect the human rights of every human being as guaranteed under international human rights law, most of the populace in Muslim States are ignorant about these rights. They do not often understand what human rights is all about. Some even believe that it is an affront against their religious values. They do not see human rights law as a individual State There is important the the abuse of against power. protecting of an means formal States informal for Muslim human rights to therefore embark on extensive and need for their populace. education Due to the importance and role of religion and religious institutions in the Muslim be limited institutions human to the but also should education not secular rights world, institutions. The Qur'an Sunnah the the to that promote provisions of religious and extended be human ideals must stressed. The provisions of international human rights rights the of instruments need also to be explained and illustrated through the Islamic legal tradition as demonstrated in this research. To praticalise their assertion in the OIC Declaration on Human Rights in Islam that human rights are divine part of the Islamic legal tradition, which no States Muslim disseminate withhold, must can what those rights are through a authority in Muslim human Under Islamic the law, education the populace have rights world. massive informed be benefit know to to them, not only for the hereafter to of everything and of a right but for their well being in this world as well. There are many Qur'anic verses, as referred to in this thesis, that enjoin the promotion of education and condemn the concealment of knowledge, which in this case includes human rights education due to its value for the
341
ultimate
benefit of the individual
in every society of today's world.
An Islamic and
international human rights curriculum for primary, secondary and tertiary institutions would be of great benefit in that regard. Non-Governmental
Organisations (NGOs) also have an
important role to play in that regard.
2. The Judiciary The primacy of domestic enforcement of human rights is acknowledged in both 14Equally, the importance instruments. human judiciary in the and regional rights of universal the domestic enforcement of human rights guarantees can not be over-emphasised.
In
domestic by the remedies of exhaustion of all available victims of human rights respect in "clearly has HRC that this the first place to judicial the refers stressed violations, 15Thus the judiciary is the ultimate resort to claiming one's right in case of its remedies". denial by the State. However justice is, to a degree, relative to the judge's understanding and justice for human in the Muslim world, Thus, the to of a rights approach reflection values. the courts and the judges must also be specially attuned to be human rights conscious. Judges in Muslim States and courts must be attuned in that regard in their dispensation of justice to adopt a human rights approach based on the humane objective of the Shari `ah (magäsid al-sharI'ah), which is the protection and promotion of human welfare. This will international introduction judges human rights jurisprudence to Islamic to the of also require in legal thinking. their comparison a reflective afford Judicial human rights training would also be very essential in this respect. This would in international law be human but only rights also encourage the development necessarily not for judges human Islamic in Islamic Muslim training rights court of
countries in their
law. Islamic of application
3. National Human Rights Commissions The establishment of national human rights commissions in the Muslim States would human in Muslim the the enhance realisation of certainly rights also world.
The national
human rights commissions would be independent bodies conferred with adequate autonomy for the general promotion of human rights ideals in the countries. The commissions would 14Seee.g. Art. 8 UDHR, Art. 2(3) ICCPR, Art. 6 ICERD, Art. 14(l) CAT, Art 25 ACHR, Art. 13 ECHR and Art. 7 ACHPR.
342
The first in the two objectives stated above. presence realising also play supplementary roles in human Muslim the has to about rights some awareness contributed of such commissions
16 countries already.
way
While the above domestic means, coupled with the good will of the State can go a long in enhancing the ideals of human rights in individual Muslim States, national apparatus,
for obvious reasons, cannot be solely adequate for the full realisation of human rights is interfor there the Especially need to universalism, encourage promote and guarantees. international human further for important of enhancement State co-operation as an means be has to Regionalism a very effective proved rights.
means to achieve that, but which the
Muslim States have not adequately exploited.
Regionalism as a Vehicle of Universalism While the State, as the main object of duties in the guarantee of human rights, is a very important institution for the realisation of human rights, the traditional concept of the modem inhibits large the itself is to realisation of a common extent a and absolutist nation-state important is Community thus the human an vehicle of ensuring practice. rights universal human international rights. of universalisation effective After the UN General Assembly adopted the UDHR in 1948, the Council of Europe through the the demonstrated the approach community adoption of regional of utility quickly first towards the European realising a collective enforcement step as convention17 regional an is in for important the An that the human as stated approach preamble of motivation rights. of European Convention that "the governments of European countries.. .are likeminded and have a common heritage of political traditions, (and) ideals... ", which could promote a collective
18 European The human countries. amongst rights common of enforcement
heritage of the American people had also contributed to the adoption of the American Declaration on the Rights and Duties of Man in 1948 and the American Convention on in 1981 to adopt the African African in 1969. The Rights Human nations were also motivated '5 R. T. [name deleted] v. France, CommunicationNo. 262/1987 (30 March 1989),UN Doc. Supp. No. 40 (A/44/40) at 277 . (1989). Par. 7.4. For provisions on the exhaustionof domesticremediesSeee.g. All. 5(2)(b) OP1 to the ICCPR, Art. 35 ECHR, Art. 46(1)(a) ACHR, and Art. 50 ACHPR. 16e.g. The Indonesian National Commission on Human Rights. For information on its functions and role in promoting human rights ideals in Indonesia See its 1999 Annual Report. Available Online at: http: //www. koninas. go. id/english/report/index. htný [21/3/2001]; and The Nigerian Human Rights Commission established Rights Commission Decree No. 22 of 1995. See a commendation of the work of the Nigerian Human National the under National Human Rights Commission in the Report on the Situation of Human Rights in Nigeria by the Special Rapporteur Human Rights, UN Doc. E/CN. 4/1999/36 of 14/1/99, Par. 69-72. Commission UN on the of 1' European Convention For The Protection of Human Rights and Fundamental Freedoms (1950). 'B See the Preamble of the European Convention. (emphasis added).
343
Charter on Human and Peoples' Rights, "(t)aking
should inspire and 19 human These the their peoples' of and rights". concept on regional reflection characterize
historical
tradition
and the values of African
into consideration the virtues of their civilization
which
from deviation international do the universal aspiration a not of constitute arrangements human rights pursued by the UN as it may appear. Rather, they narrow down the diverse cultural
differences and difficulties
that may confront
the universal
enforcement
of
international human rights in practice. The UN has itself welcomed the regional human rights institutions for human States to to regional establish rights where non regimes and appealed 20 The preambular statements of the regional human rights instruments already existed. indicate that rather than mere geographical proximity, above quoted
the basis for those
includes human and co-operation political, arrangements rights regional
social, cultural,
ideals. moral and economic The Islamic culture and civilisation transcends geographical boundaries and creates a According States. Hurewitz, heritage between Muslim "all to the countries modern stronger Arab Middle East Africa North the those are and view themselves as of and most of of The Arab states, moreover, form part of a belonging to a regional community of states. ... 21 Despite their geographical spread, the deeply fractured Islamic world". bigger yet more historical bond of Islam provides the modem Muslim States with a sense of commonality. Islamic law represents a sort of common law of the Muslim world. This was what actually held them together in the past as a single community under the Caliphate. This can be utilised for the achievement of an effective collective supervision and enforcement of human rights in the Muslim world that will greatly enhance the universal practice of international human (OIC) is Islamic Conference Organisation The law. founded of one community organ rights "to consolidate cooperation in the economic, social, cultural, scientific and other vital fields 22 It is States. OIC Muslim that the suggested among can thus provide a of activities" States international Muslim framework the modem within among order for the community
23 in international law human Muslim the rights world. practical realisation of
19Seethe Preambleto the African Charter. (emphasisadded). 20SeeUN Doc. GA Res.32/127 (1977), which hasbeenreiterated yearly since then. The Vienna Declaration and Programmeof Actions (1993) also reiteratedthis call. See32 International Legal Materials (1993) 1661at 1672,par. 37.
21 Hurewitz, J.C., (ed. ) The Middle East and North Africa in World Politics: A Documentary Record, (1975) Vol. 1., p. xvii. 22See Art. II (A) (2) of the OIC Charter. 23The definition of Muslim States for this research had in fact been based on Membership of the OIC. See Chapter 1, p. 7 above.
344
The Organisation of Islamic Conference (OIC) as a vehicle of Universalism in the Muslim World The OIC was founded by Muslim Heads of State and Governments in 1969 with the States. i24 Charter25 The "Islamic member among solidarity main objective of promoting it 1973. By December 2000 had 28 February force into OIC a the on entered establishing States States, fifty-six Muslim also whom are members of the of all total membership of UN. 26 This approximates almost one third of the present membership of the UN, an indication of the viability of the OIC serving as a platform to fulfil the need for a community in law Muslim dispensation Islamic the human the international of to within rights approach Member-States declares, inter the OIC Charter that The the alia, are: preamble of world. "Convinced that their common belief constitutes a strong factor for rapprochement and solidarity between Islamic people; Resolved to preserve Islamic spiritual, ethical, social and economic values, which for factors important the progress mankind; of achieving will remain one of Reaffirming their commitment to the UN Charter and fundamental Human Rights, the purposes and principles of which provide the basis for fruitful co-operation amongst all people; Determined to consolidate the bonds of prevailing brotherly and spiritual friendship freedom legacy the their their to common and of their protect and people, among justice, toleration founded the of and nonon principles particularly civilization discrimination; In their Endeavour to increase human well-being, progress and freedom everywhere in their to order to secure universal peace which ensures efforts unite and resolved " for justice freedom throughout the their people and all world. people and security,
It will be observed that the OIC member States reaffirmed their commitment to the UN Charter as well as to fundamental human rights as purposes and principles towards a fruitful international Charter OIC The was also registered as an co-operation amongst all people. in Article 102 Charter, UN 1,1974 February the UN with the of conformity on treaty with 27 UN. before invocable the the organs of the charter making 24Article II(A)(1) Charter of the Islamic Conference. 25914 UNTS Ill. 26This is with the exceptionof Palestine,which is not a full memberof the UN yet but has only an observerstatus. 27Art. 102 of the UN Charter provides that:
"(1) Every Treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be by it. Secretariat the and published with registered (2) No party to any such treaty or international agreement which has not been registered in accordance with the invoke 1 Article this that treaty or agreement before any organ of the United may of of paragraph provisions Nations. "
345
After a conference on "Liberties and Human Rights in Islam " in the Republic of Niger in its OIC line Ministers Foreign the Conference Tenth agreed, with 1979, of in the of Charter commitment on fundamental human rights, to set up a consultative commission of 28 for Organisation. document Through human the Muslim experts to draft an Islamic rights Rights Human Cairo Declaration OIC the emerged and was on that and subsequent efforts its further in 1990. In to Ministers OIC Foreign by of commitment pursuance the endorsed in UN in OIC the human the organised a seminar with co-operation the promotion of rights, 1998 on
"Enriching
Universal
Declaration
the Universality
Islamic Perspectives Rights: Human on the of
Rights" Human of
as part of the activities
marking
the 50th
in OIC General, Geneva. The Secretary Secretariat UN UDHR the Anniversary of the at forward "a initiative described Laraki, the step among nations and a positive Azzedine as building block in the edifice of inter-civilizational
dialogue (and to which) the Organisation
desire in to Conference the Islamic and contribute actively potential possesses all of the 29 furthering and enriching". Following the UN General Assembly's unanimous adoption of Resolution 53/22 in Civilizations", Dialogue "Year 2001 the declaring 199830 the of among as November year in May 1999 in which it
Civilizations" Dialogue "Declaration OIC among on the adopted a identified the following eight areas needing international dialogue:
1. Respondingto the common longing of humanity for faith and ethics; 2.
Enhancement
of
mutual
understanding
and
knowledge
about
various
civilizations; 3.
Cooperation and mutual enrichment in various fields of human endeavor and achievement: scientific, technological, cultural, social, political, economic, security;
4.
Promotion of the culture of tolerance and respect for diversity;
5. Cooperation to arrest threats to global peace, security and well being: drugs, degradation, terrorism; arms, conflicts, environmental 6. Confidence-building at regional and global levels; 7.
Promotion and protection of human rights and human responsibility, including the rights of minorities and migrants to maintain their cultural identity and observe their values and traditions;
28 See al-Ahsan, A., OIC, The Organization of the Islamic Conference: An Introduction (1988)P. 113
to an Islamic Political Institution
29Forthe OIC SecretaryGeneral's Opening AddressSeeUN Human Rights Website at: http"//www unhchr. ch/huricane/huricane. nsf/(Symbol)/OHCHR. 30 UN Doc A/RES/53/22 of November 16 1988.
98I I29. B. En? OpenDocument [6/03/2001].
346
8. Promotion and protection of the rights and dignity of women, safeguarding the institution of family, and protection of the vulnerable segments of the human 31 population: the children, the youth and the elderly.
Also in his address at the 56th Session of the Commission of Human Rights in March
2000, the SecretaryGeneralof the OIC statedinter alia that: "At the threshold of the 21st Century it is imperative to put an end to all (the) blatant the the human that world may enjoy same rights of people all so rights of violations to education, health, development and welfare in a decent moral environment by We illiteracy hunger, can achieve these objectives, etc. eradicating poverty, misery, deriving from international decisive cooperation through voluntary and a especially idiosyncracies In the of each people. cultural an understanding and mutual respect of this perspective, the Organization of the Islamic Conference is convinced that the dialogue of civilizations which it had called upon vehemently and which the United Nations has announced for the year 2001 will reinforce the basis of such a Organization Islamic the that the I to to of you announce cooperation. am pleased Conference is actively working in this regard. 9732
The UN has itself demonstratedthe desire to co-operatewith the OIC in the search for be back 1975 General to Such traced the when to can co-operation global problems. solution Assembly adopted a resolution to invite the OIC to participate in the sessions and work of the 33 in the capacity of observer. From 1982 the General Assembly and of its subsidiary organs General Assembly has also adopted resolutions on co-operation with the OIC and continues between United Nations item "Cooperation the its include the and the entitled to agenda on Organization of the Islamic Conference". 34
The above endeavoursof co-operation and mutuality are fully accommodatedwithin the founding objectives of the OIC without discarding the Islamic religious ideology of its Member-States. Such co-operation and mutuality are also encouraged by the Shari `ah on the basis of equity and good faith. Ensuring the realisation of international human rights in the Muslim world demands priority in these endeavours. The OIC needs to encourage among Muslim States, the practical interpretation of the general "Islamic spiritual, ethical, social and important factors for hold "one the they of achieving as of progress which economic values", international human in that the of enhances realisation rights. a manner mankind"35 31SeePar. B of Tehran Declarationon Dialogue Among Civilizations. SeeOIC Website at: http://www. oicun.org/news.htm [14/12/2000]. 32SeeAddressof SecretaryGeneralof OIC Before the 56`hSessionof the UN Commission on Human Rights, Geneva,on html [19/12/2000] 24 March, 2000, Online: http://www. oic-un.org/Statements/SG56. 33Res. 3369 (XXX) of 10 October 1975. 34Seee.g. A/RES/53/16 of I1 November 1998.See also the Report of the UN SecretaryGeneralA/53/430 of 24 September1998on Cooperationbetweenthe United Nations and the Organization of the Islamic Conference. 35 See Par. 4 of the Preamble of the OIC Charter.
347
However, an identified important problem in that regard is that while the Shari 'ah is a strong
value-unifier
in the Muslim
world,
there presently
exists no interpretative
or
interpretation in "universal" Shari 'ah the the of a of competence enforcement organ with jurisdiction determining international human the scope of the the to of with rights, or relation Shari'ah
Cairo Declaration by the the that adopted under arise even might on any violation
OIC. This situation gives room to each member State to individually
determine its own
by States is to Shari 'ah, some pleaded restrict even the vaguely sometimes which of scope the most basic human rights. The lack of an interpretative or enforcement organ has rendered States individually, Muslim document the dormant Cairo Declaration neither nor which the a face basic in the formally body the to OIC sometimes obvious of violations of the refers as a fundamental human rights in some Muslim States. There is thus a real need for a supervisory by In Declaration. for the the the absence of such guaranteed rights organ enforcement and institution, the political authorities will, for example, not be restricted in any way from clawing-back Declaration.
by OIC Cairo be the guaranteed even apparently whatever rights may The nearest to having a judicial
organ by the OIC was in 1981 when the
Organisation decided at its Third Islamic Summit Conference in Saudi Arabia to create an Islamic Court of Justice in Kuwait with the competence to hear, inter alia, cases "which the Conference it" Islamic Organization States the to to Member the of agree refer of concerned in for is in Court treaties "whose to the any provided or conventions referral and cases force". 36 The court has so far not been established.
The Regional and the UN human rights
international human have to the protection of greatly rights contributed enforcement organs by serving as independent determiners of the scope of human rights within the regional and UN systems respectively. The OIC as a unifying organisation of the modern Muslim States for in Muslim institutions his In the that the regard world. exposition on regional can emulate Human Rights in Islam, Maududi had stated that "(t)he charter and the proclamations and the resolutions of the United Nations cannot be compared with the rights sanctioned by God; " because, he continued, "the former latter integral Islamic the the are an while part anybody, of on obligatory not are faith. All Muslims and all administrators who claim to be Muslim have to accept, 07 them. recognize and enforce
It is regrettable to observe that the above statement is today, at best only theoretic. Due to lack of any enforcement or monitoring mechanism, the administrators of modem Muslim 36 See Art. 25 Organisation of the Islamic Conference, Statute of the Islamic Court of Justice, ICJ/2-86/D. I (FINAL). Available at the OIC Permanent Mission to the UN in Geneva.
37Maududi, A. A., Human Rights in Islam (1993) p. 16.
348
States often violate those "rights sanctioned by God" and even on some occasions vaguely international human rights law. Shari `ah the to violate as an excuse cite happens, other Muslim States stand by and watch hopelessly.
And when this
Perhaps the Muslim States
have resigned the redress of such violations to God in the judgement of the hereafter. Yet one finds in the Qur'an such provisions as follows: "And what is wrong with you that you fight not in the cause of God and for those weak, ill-treated and oppressed among men, women, and children, whose cry is: Our Lord! Rescue us from this town whose people are oppressors; and raise for us from You one who will protect, and raise for us from You one who will help. s38
"And if two groups among the believers fall to fighting, then make peace between them both. But if one of them outrages against the other, then fight you (all) against the one that outrages till it complies, then make reconciliation between them justly, and be equitable. Verily God loves those who are the equitable. "" "... for had it not been that God checks one set of people by means of another, monasteries, churches, synagogues and mosques wherein the name of God is mentioned much would surely have been pulled down. Verily God will help those 40 All-Mighty. help God is His All-Strong, who cause.
The clarity of the above Qur'anic provisions in relation to the principle of collective cohuman of rights under Islamic law needs no oppression and violation operation against further commentary.
A Binding Covenant and an International Islamic Court of "Mazälim " Based on OIC's commitment to the enforcement of human rights there is firstly the need for a full and binding Islamic Human Rights Covenant, to be ratified by all its member States. This is necessary because, apart from the present Cairo Declaration not being legally binding, it also leaves out many essential rights as depicted by our analysis of the ICCPR and ICESCR in this thesis. Secondly there is the need for a supervisory and enforcement organ that will bind all the member States. The enforcement organ could be in the form of an international Islamic Court of Mazälim with jurisdiction to hear complaints against States interpret the scope of the rights guaranteed under the present Cairo Declaration, the and 41 binding Covenant Shari in the The International Islamic and under general. ah proposed
38Q4:75. 39 Qur'an 49: 9. 40 Qur'an 22: 40.
41SeeChapter4 supra, for the conceptof the mazälim court under Islamic law.
349
jurists law learned Islamic highly be not only Mazälim Court of qualified composed of would human law international but jurisprudence, rights and Islamic in also conversant with jurisprudence. That would provide a definite and unified Islamic parameter for determining law by Muslim States. Islamic human the of application rights within the scope of As earlier proposed in Chapter 2 the international Islamic Court of Mazdlim would it law interpretation its in the a whereby would employ of approach an evolutionary adopt It the take Islamic jurisprudence the would advantage of schools. the all of combination of juristic it that the to doctrine opinions ultimately adopt the enabling of maslahah of utility difficulty hardship. The human benefit being and human averts and and well enhances different (eclectic the legal movement within choice) permits Islamic principle of takhayyur by Prophet Tradition is that the the jurisprudence Islamic whenever and supported schools of he lawful between always chose the easiest and most situations, had a choice equally 42 Court Mazälim Islamic international The would then consciously of beneficial option. departure jurisprudence that human definite serve as a specific would point. develop a rights for international human rights practice in the Muslim
world. Thirdly,
jurisdiction have Mazälim Court compulsory Islamic should of
the international
for individual
complaints
This Convention. Rights Human Islamic afford a more would collective the proposed under States based Muslim human on a common amongst to rights practice guaranteeing approach interpretation
of Islamic law, and a more unified
and determinable approach towards
international human rights practice in the Muslim world. The reaffirmation
by Muslim Charter UN the the to of commitment
States in the
international legal indicates to the OIC the principles of a commitment charter preamble of General The Assembly human UN, international the to the UN rights regime. of also the and had equally recognised the need for close co-operation in 1998 November Session its 53rd at including for in OIC to the UN the global problems solutions the search between and fundamental
human rights.
43
In pursuance of such co-operation
and dialogue
for
human rights, which aims at combining the best in all cultures international in universalism international Islamic Court of beings for human the they legal are, traditions wherever all and Mazdlim would be expected to co-operate with the UN international human rights bodies as bodies in "universal human in the a realising universalism" rights regional other well as with international human rights law.
42 See e.g. Karnali, M. H., "Have We Neglected the Shad'ah Law Doctrine of Maslahah? " (1988) 27 Islamic Studies, p. 287 at 290.
43SeeUN Doc A/RES/53/16 of l la' November, 1998.
350
The "Margin of Appreciation"Doctrine
as a Means of Universalism
Complementary to the above Islamic regional human rights regime, this thesis has also doctrine by UN the for the the of appreciation margin the of adoption need emphasised 44 international human in interpreting international human rights treaty bodies rights treaties it human European doctrine the and rights regime The margin of appreciation exists within has been defined as "the line at which international supervision should give way to a State 45 its it doctrine has While its laws". the in discretion no critics, Party's enacting or enforcing doubt allows for the sustenance of justifiable
moral values of different societies through
derogation [or between balance permitted and a "striking a right guaranteed ... a 46 In practice the UN Human Rights Committee has not formally adopted the limitation]" in it Hertzberg has but to doctrine47 one occasion and only on referred margin of appreciation Others v. Finland48 where the authors had brought a complaint alleging violation of their freedom of expression under Article
19 of the ICCPR. The State Party had in that case
homosexuality. dealing TV with programmes censured
The State Party argued that the
finding had In been that there for no the morals. public of protection were restrictions HRC that: Article 19, the stated of violation "It has to be noted, first, that public morals differ widely. There is no universally in Consequently, this respect, a certain margin of standard. common applicable discretion oust to be accorded to the responsible national authorities. s49
The Committee however rejected the doctrine in Ilmari Lansman et al v. Finlandso their brought to their had violation of right enjoy the alleging own a complaint authors where had State Party The ICCPR. that the 27 Article the argued acts complained of culture under "a discretion be left development that to in margin of must and of national pursuance were of 51 in Although 27" did HRC in that the the regard. article of application national authorities State Party's it however that the 27, Article breach find out scope a pointed of of a not " On the "margin of appreciation" doctrine See e.g. Steiner, H. J. and Alston, P., International Human Rights in Context, Law, Politics, Morals, (2d Ed. 2000) pp. 854- 857; Harris, D. J., O'Boyle, M, and Warbrick, C, Law of the European Convention on Human Rights (1995) pp. 12-15; and Clayton, R., and Tomlinson, H., The Law of Human Rights (2000) Vol.!, pp. 273-278; Ghandhi, P. R., The Human Rights Committee and the Right of Individual Communication: Law and Practice! 998) pp. 311-314 and n. 96 at p. 326.
45SeeYourow, H.C., TheMargin ofAppreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (1996) p. 13, citing Wong, "The SundayTimes Case:Freedomof ExpressionVersus English Contempt-of-Court Law in the EuropeanCourt of Human Rights" (1984) 17New York University Journal of International Law and Politics, 35 at 58. 46 ibid.
47SeeGhandhi,P.R., (1998) supra,note44above,p.314. °SCommunicationNo. 61/1979 Finland: 2/4/82. UN Doc. Supp. No.40 (A/37140)at 161 (1982). 49ibid., Par. 10.3. 50CommunicationNo. 511/1992:Finland 08/11/94. CCPR/C/52/D/511/1992. S' ibid., Par. 7.13.
351
freedom to encourage development "is not to be assessed by reference to a margin of 52 in it is has 27". It but by the to undertaken article obligations reference appreciation, in later by HRC due the the the the case that was margin of appreciation rejection of probable has from The HRC its to the obviously refrained of morals. to protection non-relatedness its fear by States due doctrine the to of potential abuse the margin of appreciation adopting justification imposing for freedom like important limit or as Parties to expression of rights issues State. The the to the threat of public of existence states of emergency on grounds of fears because however does to the rise such application give not values and religious morals is based these on public sensibility and morality grounds on of a margin of appreciation Its State for the the application on grounds of public than se. per protection of rather in State justifiable be the the thus obvious accepted practice on sensibility and morality will concerned. The European Court of Human Rights has effectively applied the doctrine in a variety of Rights. Macdonald has "(t)he Human Convention that European the observed of cases under Court in is the the the tool the of ensuring efficacy of primary now margin of appreciation 8 11,14 Articles to application of
and 15 and Article
1 of Protocol No. l. i53 This has
Convention European brought the under consisted of cases
involving
issues such as
for others, commercial speech, of respect protection of morals, protection of reputation life home, family for life, family and sexual morality, respect status, matrimonial private and life, peaceful enjoyment of possessions, expropriation and nationalism, control of private liberty licensing non-discrimination, and security of regulations, and rental property, 54 The relevance and rationality of the proposal in this thesis for the adoption of the person. international human UN be doctrine the rights within regime can not margin of appreciation better buttressed than in the following conclusion of Macdonald after his detailed exposition follows: doctrine justified doctrine. He the as of the "The margin of appreciation which is more a principle of justification than interpretation, aims to help the Court show the proper degree of respect for the it Contracting Party to the trade-offs that that pursue, and may wish a objectives
52 ibid., Par. 9.4. See also the debate on cultural practices during consideration of Nigeria's initial report to the ICESCR, delegation Nigerian ESCR Committee Members the in the to the of arguments cultural stated, inter alia, that response where "it was not the Committee's mandate to evaluate cultural practices and pass judgement on them, but rather to determine it had entered into". UN Doc. E/C. 12/1998/SR. 7 Covenant the State to the with conforming obligations was party a whether of 09/09/98. 53 Macdonald, St. J. R, "The Margin of Appreciation" in Macdonald, J, et al. (ed. ) The European Systemfor the Protection of Human Rights (1993) p-83-
5" Seegenerally ibid, pp.83-124; Seealso Yourow, H.C., (1996) supra, note 45 above.
352
the time on the unnecessary restrictions to preventing same make, while at wants ss Convention fullness of the protection which the can provide has enabled the Court to avoid any damaging dispute with This flexibility Contracting States over the respective areas of authority of the Court and the Convention and the Contracting States and their respective legislatures. The margin balance between Court helped the has the a proper strike also of appreciation institutions by the the Convention central of and the organs national application of Court and Commission. Practices within States vary. In one State a law viewed in be seen as violating the might the abstract outside other national circumstances it light in but or practice matter may the national of some other viewed convention, Contracting Convention that drafters intention the The not each the was of of not. State would have uniform laws but that there would be a European standard which, if State. The Contracting Members the margin of to the of violated, would give redress in has this task. assisted much very appreciation The justification of the margin of appreciation is usually a pragmatic one. The in is the tool is eventual realization the a useful that of appreciation margin argument in human-rights European-wide which a uniform standard protection, system of of a be the that is Progress towards gradual, since entire goal must secured. of protection legal framework rests on the fragile foundations of the consent of the Contracting Parties. The margin of appreciation gives the flexibility needed to avoid damaging States Contracting their Court between the respective spheres over and confrontations Contracting Parties balance Court the to the of sovereignty of authority and enables 56 Convention' with their obligation under the
It will be observedthat the margin of appreciation doctrine is likened to the principle of important for the had to principle addressing an justification, which we as also referred in human international this thesis. law between Islamic rights earlier differences of scope and Expressing the fears of the HRC on the adoption of the doctrine, Schmidt has argued that the "might Committee by doctrine the prompt some states the of appreciation margin of adoption ill-defined inappropriate in however `cultural or to relativism', rely on arguments of parties 57 human-rights justify , The to to serious abuses. or seek case, of a given the circumstances doctrine. The is for the in thesis application this of or unjustifiable an arbitrary not proposal by Treaty Bodies be the supervised and proportionately exercised margin of appreciation will be doctrine the A State Party its that would saddled with the onus of pleads to prevent abuse. justification legal a establishing
for exercising its margin of discretion in any alleged
be determined by doctrine thus the The the circumstances would of scope of right. violation European Court. in The demonstrated has been the the of approach of practice of each case as for "European in interpreting is in Court to the that European an consensus" search regard the
ss See also Mahoney, "Judicial Activism and Judicail Self-Restraint in the European Court of Human Rights: Two Sides of 57. Law Journal Human Rights 11 (1990) Coin", Same p. the
56Macdonald, St. J. R., (1993) supra note 53 above,p. 123.
57 Schmidt, M. G., "The Complementarity of the Covenant and the European Convention on Human Rights - Recent Developments" in Harris, D. J., and Joseph, S., The International Covenant on Civil and Political Rights and United Kingdom Law (1995) p. 628 at 657.
353
provisions
States Whenever the Convention. member the among achieves a practice of
"the Court to the standard of rights-protection which all raises of uniformity certain measure 58 According to Helfer, the Court, broadly speaking, relies "on three states must adhere". distinct factors as evidence of (an European) consensus: legal consensus, as demonstrated by European domestic statutes, international treaties, and regional legislation; expert consensus; Court the "59 In the European any such consensus, gives a absence of public consensus. and 60 State concerned . wide margin of appreciation to the The European human rights regime is regarded as the most developed human rights has the by Macdonald the If, of appreciation provided margin above, observed as regime. "useful tool "flexibility to and considered as a the confrontations" avoid needed with system in the eventual realization of a European-wide system of human-rights protection, in which a doctrine is the the then of supplemented adoption secured", of protection standard uniform lead to Islamic the above would ultimately a similar proposed approach regional with in Muslim States, human international to the relation regime who rights stability within is Covenants to the the and whose practice parties constitute a significant proportion of Covenant In the to the rights. respect to of of meaning as consensus any relevant international bill of rights examined in this thesis, the margin of appreciation doctrine will be homosexuality, family, blasphemy, definition issues in of tool as such addressing a useful States Parties Muslim Islamic in that to apply relation questions moral abortion and other law. The consensus approach will also require an equitable balance of membership of both legal least Committee the ESCR to HRC the civilisations and systems of all reflect at the and faciliate interpretation This if State Parties the will a universal a whole. world as of the not Covenants States by Parties to the the the as observed of all norms that accomodates 61 above. McGoldrick earlier To assist the international human rights committees on questions of Islamic law the harmonising institution be Islamic Mazälim Court Islamic international a on will of proposed law for matters brought before it among Muslim States, and its jurisprudence and opinions in determination Islamic the the thus values and norms point on of reference serve as would for international Islamic by UN human the appreciation values margin of any necessary
"See Helfer, L., "Consensus,Coherenceand The EuropeanConvention on Human Rights" (1993) 26 Cornell International Law Journal, No. 1,133 at 139. '9 ibid at 134. 60See e.g. Rees v. United Kingdom (1986) 106 Eur. Cf. Human Rights (Series A) at 15; Cossey. v. United Kingdom (1990) . 184 Eur. Ct. Human Rights (Series A) at 16; and B. v. France (1992) 232 Eur. Ct. Human Rights (Series A).
61Seep. 339 above.
354
differences bodies. This treaty of any problems of opinion in respect of eliminate will rights Islamic legal norms under consideration before the international treaty bodies. The above propositions, implemented in good faith and backed with political humanitarian will, is capable of providing
the flexibility
and
needed to avoid confrontation
between Islamic law and international human rights law and create "breathing space" or "elbow
room" for a more closer rapport that will
gradually and ultimately
lead to the
in human between Islamic law and rights of universalism realisation of a common standard international human rights law in the Muslim world.
355
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